Non Raceday Inquiry RIU v BA Swinburne – Decision dated 2 April 2014

hearingid: 97352ff0a775712aaa4650eaefbf94b2

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 29/03/2014

hearing_title: Non Raceday Inquiry RIU v BA Swinburne - Decision dated 2 April 2014

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

Non Raceday Inquiry RIU v BA Swinburne 27 March 2014 – Decision dated 2 April 2014

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND BRAD ALLAN SWINBURNE

Respondent

Rule: 656(3)

Information No: A2219

Judicial Committee: BJ Scott, Chairman – AJ Godsalve, Committee Member

Appearing: Mr BJ Oliver for the Informant

Mr BA Swinburne as the Respondent

Registrar: Mr J Oatham

Also Present: Mr CR McCarroll – Licensed Trainer – supporting Mr Swinburne

Venue: Cambridge Raceway, Cambridge

Date of Hearing: 27 March 2014

Date of Decision: 2 April 2014
______________________________________________________________________________

DECISION OF JUDICIAL COMMITTEE

1. Mr Swinburne appears before this Judicial Committee on the following charge:

“That on the 10th day of March 2014, at the Cambridge Jockey Club Training Centre, having been required by an Investigator to supply a sample of your urine in accordance with Rule 656(3) of the New Zealand Rules of Racing, you had urine which was found, upon analysis, to contain the controlled drug cannabis as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656(3) AND THAT you are thereby liable to the penalty of penalties which may be imposed on you pursuant to Rule 803 of the said Rules.”

2. The Rules read as follows:

Rule 656(3) – “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.”

Rule 803(1) – “A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere is these Rules shall be liable to:

(a) be disqualified for a period not exceeding 12 months; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $20,000.00.

3. Mr Swinburne confirmed that he understood Rules 656(3) and 803(1) and that he admitted the charge. We thus find the charge proved.

4. Mr Oliver tabled a signed Authority from the Racing Integrity Unit (RIU) to proceed with the charge against Mr Swinburne.

5. Mr Oliver also tabled a copy of the Test Report from the Institute of Environmental Science and Research Limited.

FACTS

6. On Monday the 10th of March 2014, Officials from the Racing Integrity Unit conducted routine drug testing at the Cambridge Jockey Club Training Centre in Cambridge.

7. The Respondent Mr Brad Swinburne, was one of the people randomly selected for testing and was served the appropriate notice by a Stipendiary Steward. Mr Swinburne was unable to provide a urine sample at the time despite waiting three hours. He was directed to provide a sample before 5pm the next day at the Offices of the New Zealand Drug Detection Agency in Hamilton. He duly provided that sample which indicated the presence of the controlled drug cannabis.

8. Formal analysis by the ESR confirmed the presence of the drug at a level of 73 nanograms per milliliter of urine which is in the low range.

9. Mr Swinburne was spoken to and freely admitted being a social cannabis user. He said he was a casual user and had smoked cannabis the weekend before the testing. He said his use was infrequent. He voluntarily agreed to stop riding trackwork from that date, the 11th of March until the result could be confirmed by the ESR.

10. A stand down notice and copy of the ESR Certificate in accordance with Rule 657(1)(a) were given to Mr Swinburne on the 17th day of March 2014.

11. Mr Oliver was unable to produce a copy of the Stand Down Notice given to Mr Swinburne but Mr Swinburne for his part acknowledged receiving the Notice.

12. Given the opportunity to address the Committee Mr Swinburne said that he accepted the facts as presented by Mr Oliver and he only casually used cannabis and that he apologized for his actions.

PENALTY SUBMISSIONS BY MR OLIVER

13. New Zealand Thoroughbred Racing has been drug testing industry participants since 1995 and since that time there has been a growing awareness that there is an absolute obligation on those riding horses to present themselves free of the influences of any drug.

14. All riders are aware of the policy and the consequences should they not comply. The testing is conducted for two reasons, the need to maintain a healthy and safe workplace and secondly to maintain the Integrity of the Industry.

15. Historical penalties for breaches of the Industry Drug Laws show some divergence. The type of drug, the situation and the amount of the drug in the system add to this divergence.

16. On this occasion Mr Swinburne has presented himself at the Cambridge Training Centre to ride trackwork while the drug cannabis was within his body. Cannabis is a class C drug and the amount within his system was in the low range.

17. Mr Swinburne was co operative during the process and freely acknowledged his use of cannabis. He is a 36 year old man who has been in the Industry since he was 15 years old. His total income is derived from this Industry. He supports two children. He has not had any previous Rule breaches.

18. It is submitted that a period of three months suspension and the cost of the analysis of $187.50 (to the RIU) should be imposed.

PENALTY SUBMISSIONS BY MR SWINBURNE

19. Mr Swinburne said that a suspension for a period of three months was too long. He said that during this period of suspension he is not earning enough and he is only receiving board and provision of groceries. He has to support two children and this is having a severe impact on him.

20. He said that he cannot cope with the present situation and he thought that a suspension of between six weeks to two months was more appropriate.

21. Mr Swinburne also pointed to the mitigating factors which were that the reading was in the low range, he had admitted the breach in the first instance and had been fully co operative and that he has been involved in the Racing Industry for 21 years and this is his first offence. He also pointed out that he had voluntarily stood down from riding on the 11th of March.

22. The Committee raised with Mr Swinburne the possibility of the penalty being both suspension of Licence and fine. Mr Swinburne’s concern in respect to a fine was whether NZTR would allow him to pay the fine over a period of time. Mr Oliver advised the Committee that he felt that NZTR would look at Mr Swinburne’s application favourably.

PENALTY SUBMISSIONS BY MR McCARROLL

23. Mr McCarroll said that Mr Swinburne was very reliable and he knows that he has learned his lesson. He said at present Mr Swinburne helps him with breaking in a couple of horses at home but that that would come to an end shortly as the horses were broken in.

24. He also pointed to the fact that the reading was in the low range and it was Mr Swinburne’s first offence.

25. Mr McCarroll further said that any suspension was hard on him because there were not a lot of trackwork riders available and he basically needed Mr Swinburne back as soon as possible.

REASONS FOR PENALTY

26. In coming to our decision the Committee has carefully considered all of the submissions placed before us.

27. In mitigation, the Committee notes Mr Swinburne’s admission of the breach, his full co operation with the investigation process including his voluntary stand down at the first instance. Further mitigating factors are the low reading and Mr Swinburne’s very good record.

28. An aggravating feature is that Mr Swinburne was riding trackwork whilst under the influence of cannabis, posing a safety risk to horses, riders and other industry participants.

PENALTY

29. The Committee reinstates Mr Swinburne’s Trackwork Rider’s Licence as from the 17th of March 2014.

30. Taking all matters into account we are satisfied that a period of suspension together with a fine is the most appropriate means to act as a deterrent on this occasion and in fact Mr Swinburne will have a continual reminder when he is paying off the fine.

31. After considering the aggravating and mitigating factors the Committee believes that a suspension of Mr Swinburne’s Licence for five weeks from the 17th of March 2014 together with a fine of $200.00 is appropriate.

32. This Committee orders as follows:

(a) That Mr Swinburne’s Trackwork Rider’s Licence is suspended for a period of five weeks from the 17th of March 2014 until up to and including the 21st of April 2014.

(b) Mr Swinburne is fined the sum of $200.00.

COSTS

33. Mr Swinburne is also ordered to pay costs of $187.50 to the RIU for sample analysis costs. This Hearing was conducted on a Race Day and accordingly there are no further orders as to costs.

Bryan Scott          Alan Godsalve

Chairman            Committee Member

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: