Non Raceday Inquiry – RIU v HA Wiki – 3 August 2011 – Decision
ID: JCA13860
Decision:
1. Nature of the charge
1.1 Mr. Wiki is charged that on Saturday 16th July 2011 at Wellington, being a rider who, having being requested by a Stipendiary Steward to supply a sample of his urine which was found, upon analysis, to contain the controlled drug Cannabis as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 656 (3) of the New Zealand Rules of Racing AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to the provisions of Rule 803 of the said rules.
1.2 Rule 656 (3) provides as follows:
“A rider who, having been required by a Stipendiary Steward or Investigator to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) in accordance with this Rule must not have blood, breath, urine, saliva or sweat (whichever is the subject of the applicable sample) which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers.”
1.3 Mr. Wiki admitted the charge and acknowledged that he had received a copy of Rule 656 (3) and that he understood the rule.
2. Facts
2.1 Mr. Neal provided written authority from the Head of the Racing Integrity Unit to proceed with the charge against Mr. Wiki. He then presented a summary of facts:
Summary of Facts
a. On Saturday 16th July 2011 RIU officials conducted routine drug testing during the course of the Wellington Racing Club race meeting.
b. The defendant Heta Andrew Wiki was one of the people selected to be tested. Mr. Wiki was approached by Stipendiary Steward Ross Neal shortly after he arrived on course and served with the appropriate notice and directed to attend the testing station prior to leaving the course on that day.
c. The defendant duly attended the testing station as requested and supplied a sample of his urine at 12.04pm. This sample was given the ID number 555904.
d. The sample along with all other samples were delivered to the ESR Laboratory in Porirua by Steward Neal on Monday 18th July 2011 at 8:00am
e. On Thursday 21st July 2011 NSTR received written notification from the Institute of Environmental Scientific and Research Ltd (ESR) that Mr. Wiki’s urine sample (ID number 555904) had tested not negative to the presence of Cannabis. This was in effect a positive result. (ESR Urine Drug Test Report) tabled.
f. On the same day (Thursday 21st July 2011) the Defendant was served with a stand down notice pursuant to Rule 657 (1) (b) of the Rules of Racing. The effect of this being that as from the time of service and until the conclusion of the hearing of the matter the defendant's licence was effectively withdrawn. The defendant acknowledged he understood and accepted the situation without question.
g. The defendant was interviewed and an explanation sought as to how cannabis could have been in his system. The Defendant readily admitted that he had imbibed in cannabis some 4 days prior to the 16th July and this must have been the cause of the adverse result.
h. At the conclusion of the interview the Defendant was advised that he would be charged and he would be contacted and formally charged in the coming days.
i. During the process of testing and subsequent interview the Defendant was totally co-operative and provided open and honest answers to all enquiries.
2.2 Mr. Wiki reaffirmed that he understood the charge and that the summary of facts as presented by Mr. Neal was correct.
2.3 Mr. Wiki had no comment
2.4 Submissions on Penalty
a. NZTR commenced drug testing riders in 1995 and since this time there has been growing awareness that an absolute obligation rests with those riding horses to present themselves free of the influence of any drug or drugs at all times.
b. NZTR has an illicit drugs free policy in terms of all riders whether they are riding in races, trials or track work. Racing clubs who operate training facilities are also mindful that they to have an obligation to provide a safe working environment.
c. These policies relating to drugs have been well gazetted and riders have been made fully aware of the potential consequences should they imbibe in prohibited substances
d. In fact drug testing of riders is now an important aspect of the New Zealand thoroughbred racing industry, with riders being regularly tested at both race meetings and at track work alike.
e. The reason for testing riders is primarily twofold; firstly for the reasons of maintaining the integrity of the industry and secondly and importantly it is conducted for reason of maintaining health and safety in the workplace.
f. In addition to the workplace and integrity aspects it is important that riders do not unduly put at risk horses of value and worth by way of them being under the influence of an illicit substance, and the fact that a rider has a banned substance present in their system represents a risk to not only themselves but also others.
g. With respect to historical penalties imposed against riders for breach of the drug rules these are varied and, in most cases, dependent upon the ‘class’ of drug detected. Simply put: riders who have been found to have in their systems drugs classified as ‘Class A’ have attracted significantly harsher penalties than those riders who have tested positive to a ‘Class C’ drug.
h. As evidenced from the attached schedule of historical penalties, breaches of the drug rules demonstrate some divergence in the actual penalties imposed. This being because of the substance detected and also because of the circumstances of the individual offender.
i. With respect to this offence, the substance detected – Cannabis is classified within group known as ‘Class C’ drugs. Therefore the penalty being sought is not as significant as it would have been had the drug been classified ‘Class A’.
j. However, notwithstanding this ‘Class C’ classification the RIU considers that any prohibited drug found in a riders system to be inherently detrimental to racing and accordingly the penalty imposed must be reflective of the seriousness and the concern that this raises.
k. Riders who present themselves to ride either in track work or at race meetings are well aware of the duties that rest with them with respect to ensuring that they do so drug free. On this occasion the defendant has not complied with this requirement and commensurately he finds himself before you today.
l. The Defendant is very new to race riding having only ridden in a total of seven races; nevertheless he knew the rules and did not comply with them.
m. The Defendant is a young man with a family and depends upon racing for his income. He is well regarded with respect to his riding ability and is keenly sought after at the Woodville track where he is domiciled. He has not previously appeared on any drug related offences.
n. It is important to note that over recent times other racing jurisdictions have lessened the penalties for cannabis and accordingly it is respectfully submitted this be applied in the case before you. An example being NSW where first offences for cannabis alone attract a three month suspension. Subsequent offences attracting greater periods of suspension.
o. Given all the facts and circumstances, it is the Informants position that a period of suspension of the Defendants riders licence is appropriate and that this be in the vicinity of three to four months.
p. Mr. Neal tabled a summary of penalties imposed on jockeys and track work riders over a 2 year period. He reiterated again the Racing Integrity Units position on differentiating between Class A and Class C drugs. While stressing to the committee the seriousness of riders testing not negative, he believed that in arriving at an appropriate penalty a number of factors should be taken into account.
q. In Mr. Wiki’s case, he believed that a disqualification imposed for this breach would cause enormous pressure on Mr. Wiki, his partner and young child. Mr. Neal explained the difference between a period of disqualification and a period of suspension.
r. He indicated to the committee that Mr. Wiki was an important component in ensuring the availability of competent track riders at the Woodville Race Course. Mr. Goodwin confirmed this by indicating the track manager at the Woodville Race Course held Mr. Wiki in high regard as a track work rider. Any disqualification would eliminate any financial income from riding at the track. Mr. Wiki had in a short period of race riding only 7 rides on race day and the income derived from track work was a major source of income for him and his family. Mr. Neal commented on Sec 8 of the Sentencing Act and submitted that the sentence imposed should have the least restricted outcome and that the sentence imposed must take into account all circumstances.
2.5 Mr Wiki in his submissions on penalty had little to add. Having had the difference between disqualification and suspension carefully explained to him, he asked that a period of suspension be imposed. This would allow him to continue his career as a track work rider ensuring he and his family had a regular income. He now realises the stupidity of being involved with smoking cannabis and had no idea the length of time the drug remained in the bloodstream. Fellow jockeys had indicated to him that the effects were short lived. He now knows that information was incorrect.
2.6. Decision
In coming to our decision we have carefully considered all of the submissions placed before us.
The level of 300mg/ml is well above the 15ng/ml used as the base minimum, and this was a concern to the committee. We are convinced that Mr. Wiki’s naivety in believing fellow jockeys comments on traceability of cannabis in the blood stream will not be repeated. We have noted that Mr. Wiki was totally op-operative in all of this dealings with the Racing Integrity Unit during the course of the investigation.
We as the committee carefully considered the submissions made by Mr. Neal and especially his submissions on historical penalties 2.4h in the penalty submission, and 2.4n which he noted that other racing jurisdictions have lessened the penalties for cannabis and asked for this to be applied in this case. We have agreed in this case to that submission.
Understandably Mr. Wiki’s dependence on track work riding income to support his partner and child was a factor in arriving at a penalty of a period of suspension. Being only 20 years of age with dependants was, in our opinion, an important part in our deliberations.
Mr. Wiki, drugs and race horses do not mix and ample publicity has been made available throughout the racing industry that the taking of drugs will not be tolerated. While this is your first charge under this rule and you admitted the breach, any further charges under this rule will, we believe, have a more serious consequence for you.
Penalty:
2.7. Penalty
a. In view of the fact Mr. Wiki’s licence was withdrawn on the 21st Day of July 2011 we formally reinstated your licence as from the 2nd August 2011.
b. Taking all matters into account we are satisfied that an appropriate penalty is one of suspension for a period of three months. This suspension will take effect from the date of the issue of the licence withdrawal notice, the 21st of July 2011 and is to end at midnight the 21st of October 2011.
c. Costs. No submissions on costs from the Racing Integrity were tabled. Costs of $150.00 are ordered to be paid to the Judicial Control Authority.
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 31/07/2011
Publish Date: 31/07/2011
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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startdate: no date provided
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plea:
penaltyrequired:
decisiondate: 31/07/2011
hearing_title: Non Raceday Inquiry - RIU v HA Wiki - 3 August 2011 - Decision
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
1. Nature of the charge
1.1 Mr. Wiki is charged that on Saturday 16th July 2011 at Wellington, being a rider who, having being requested by a Stipendiary Steward to supply a sample of his urine which was found, upon analysis, to contain the controlled drug Cannabis as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 656 (3) of the New Zealand Rules of Racing AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to the provisions of Rule 803 of the said rules.
1.2 Rule 656 (3) provides as follows:
“A rider who, having been required by a Stipendiary Steward or Investigator to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) in accordance with this Rule must not have blood, breath, urine, saliva or sweat (whichever is the subject of the applicable sample) which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers.”
1.3 Mr. Wiki admitted the charge and acknowledged that he had received a copy of Rule 656 (3) and that he understood the rule.
2. Facts
2.1 Mr. Neal provided written authority from the Head of the Racing Integrity Unit to proceed with the charge against Mr. Wiki. He then presented a summary of facts:
Summary of Facts
a. On Saturday 16th July 2011 RIU officials conducted routine drug testing during the course of the Wellington Racing Club race meeting.
b. The defendant Heta Andrew Wiki was one of the people selected to be tested. Mr. Wiki was approached by Stipendiary Steward Ross Neal shortly after he arrived on course and served with the appropriate notice and directed to attend the testing station prior to leaving the course on that day.
c. The defendant duly attended the testing station as requested and supplied a sample of his urine at 12.04pm. This sample was given the ID number 555904.
d. The sample along with all other samples were delivered to the ESR Laboratory in Porirua by Steward Neal on Monday 18th July 2011 at 8:00am
e. On Thursday 21st July 2011 NSTR received written notification from the Institute of Environmental Scientific and Research Ltd (ESR) that Mr. Wiki’s urine sample (ID number 555904) had tested not negative to the presence of Cannabis. This was in effect a positive result. (ESR Urine Drug Test Report) tabled.
f. On the same day (Thursday 21st July 2011) the Defendant was served with a stand down notice pursuant to Rule 657 (1) (b) of the Rules of Racing. The effect of this being that as from the time of service and until the conclusion of the hearing of the matter the defendant's licence was effectively withdrawn. The defendant acknowledged he understood and accepted the situation without question.
g. The defendant was interviewed and an explanation sought as to how cannabis could have been in his system. The Defendant readily admitted that he had imbibed in cannabis some 4 days prior to the 16th July and this must have been the cause of the adverse result.
h. At the conclusion of the interview the Defendant was advised that he would be charged and he would be contacted and formally charged in the coming days.
i. During the process of testing and subsequent interview the Defendant was totally co-operative and provided open and honest answers to all enquiries.
2.2 Mr. Wiki reaffirmed that he understood the charge and that the summary of facts as presented by Mr. Neal was correct.
2.3 Mr. Wiki had no comment
2.4 Submissions on Penalty
a. NZTR commenced drug testing riders in 1995 and since this time there has been growing awareness that an absolute obligation rests with those riding horses to present themselves free of the influence of any drug or drugs at all times.
b. NZTR has an illicit drugs free policy in terms of all riders whether they are riding in races, trials or track work. Racing clubs who operate training facilities are also mindful that they to have an obligation to provide a safe working environment.
c. These policies relating to drugs have been well gazetted and riders have been made fully aware of the potential consequences should they imbibe in prohibited substances
d. In fact drug testing of riders is now an important aspect of the New Zealand thoroughbred racing industry, with riders being regularly tested at both race meetings and at track work alike.
e. The reason for testing riders is primarily twofold; firstly for the reasons of maintaining the integrity of the industry and secondly and importantly it is conducted for reason of maintaining health and safety in the workplace.
f. In addition to the workplace and integrity aspects it is important that riders do not unduly put at risk horses of value and worth by way of them being under the influence of an illicit substance, and the fact that a rider has a banned substance present in their system represents a risk to not only themselves but also others.
g. With respect to historical penalties imposed against riders for breach of the drug rules these are varied and, in most cases, dependent upon the ‘class’ of drug detected. Simply put: riders who have been found to have in their systems drugs classified as ‘Class A’ have attracted significantly harsher penalties than those riders who have tested positive to a ‘Class C’ drug.
h. As evidenced from the attached schedule of historical penalties, breaches of the drug rules demonstrate some divergence in the actual penalties imposed. This being because of the substance detected and also because of the circumstances of the individual offender.
i. With respect to this offence, the substance detected – Cannabis is classified within group known as ‘Class C’ drugs. Therefore the penalty being sought is not as significant as it would have been had the drug been classified ‘Class A’.
j. However, notwithstanding this ‘Class C’ classification the RIU considers that any prohibited drug found in a riders system to be inherently detrimental to racing and accordingly the penalty imposed must be reflective of the seriousness and the concern that this raises.
k. Riders who present themselves to ride either in track work or at race meetings are well aware of the duties that rest with them with respect to ensuring that they do so drug free. On this occasion the defendant has not complied with this requirement and commensurately he finds himself before you today.
l. The Defendant is very new to race riding having only ridden in a total of seven races; nevertheless he knew the rules and did not comply with them.
m. The Defendant is a young man with a family and depends upon racing for his income. He is well regarded with respect to his riding ability and is keenly sought after at the Woodville track where he is domiciled. He has not previously appeared on any drug related offences.
n. It is important to note that over recent times other racing jurisdictions have lessened the penalties for cannabis and accordingly it is respectfully submitted this be applied in the case before you. An example being NSW where first offences for cannabis alone attract a three month suspension. Subsequent offences attracting greater periods of suspension.
o. Given all the facts and circumstances, it is the Informants position that a period of suspension of the Defendants riders licence is appropriate and that this be in the vicinity of three to four months.
p. Mr. Neal tabled a summary of penalties imposed on jockeys and track work riders over a 2 year period. He reiterated again the Racing Integrity Units position on differentiating between Class A and Class C drugs. While stressing to the committee the seriousness of riders testing not negative, he believed that in arriving at an appropriate penalty a number of factors should be taken into account.
q. In Mr. Wiki’s case, he believed that a disqualification imposed for this breach would cause enormous pressure on Mr. Wiki, his partner and young child. Mr. Neal explained the difference between a period of disqualification and a period of suspension.
r. He indicated to the committee that Mr. Wiki was an important component in ensuring the availability of competent track riders at the Woodville Race Course. Mr. Goodwin confirmed this by indicating the track manager at the Woodville Race Course held Mr. Wiki in high regard as a track work rider. Any disqualification would eliminate any financial income from riding at the track. Mr. Wiki had in a short period of race riding only 7 rides on race day and the income derived from track work was a major source of income for him and his family. Mr. Neal commented on Sec 8 of the Sentencing Act and submitted that the sentence imposed should have the least restricted outcome and that the sentence imposed must take into account all circumstances.
2.5 Mr Wiki in his submissions on penalty had little to add. Having had the difference between disqualification and suspension carefully explained to him, he asked that a period of suspension be imposed. This would allow him to continue his career as a track work rider ensuring he and his family had a regular income. He now realises the stupidity of being involved with smoking cannabis and had no idea the length of time the drug remained in the bloodstream. Fellow jockeys had indicated to him that the effects were short lived. He now knows that information was incorrect.
2.6. Decision
In coming to our decision we have carefully considered all of the submissions placed before us.
The level of 300mg/ml is well above the 15ng/ml used as the base minimum, and this was a concern to the committee. We are convinced that Mr. Wiki’s naivety in believing fellow jockeys comments on traceability of cannabis in the blood stream will not be repeated. We have noted that Mr. Wiki was totally op-operative in all of this dealings with the Racing Integrity Unit during the course of the investigation.
We as the committee carefully considered the submissions made by Mr. Neal and especially his submissions on historical penalties 2.4h in the penalty submission, and 2.4n which he noted that other racing jurisdictions have lessened the penalties for cannabis and asked for this to be applied in this case. We have agreed in this case to that submission.
Understandably Mr. Wiki’s dependence on track work riding income to support his partner and child was a factor in arriving at a penalty of a period of suspension. Being only 20 years of age with dependants was, in our opinion, an important part in our deliberations.
Mr. Wiki, drugs and race horses do not mix and ample publicity has been made available throughout the racing industry that the taking of drugs will not be tolerated. While this is your first charge under this rule and you admitted the breach, any further charges under this rule will, we believe, have a more serious consequence for you.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
2.7. Penalty
a. In view of the fact Mr. Wiki’s licence was withdrawn on the 21st Day of July 2011 we formally reinstated your licence as from the 2nd August 2011.
b. Taking all matters into account we are satisfied that an appropriate penalty is one of suspension for a period of three months. This suspension will take effect from the date of the issue of the licence withdrawal notice, the 21st of July 2011 and is to end at midnight the 21st of October 2011.
c. Costs. No submissions on costs from the Racing Integrity were tabled. Costs of $150.00 are ordered to be paid to the Judicial Control Authority.
hearing_type: Non-race day
Rules: 656 (3) and Penalty Rule 803
Informant: R H Neal - Stipendiary Steward
JockeysandTrainer:
Otherperson:
PersonPresent: Mr N Goodwin - Registrar
Respondent: A H Wiki - Defendant
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