Non Raceday Inquiry RIU v BRW Wate – Reserved Decision dated 7 December 2016 – Chair, Mr RG McKenzie

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hearing_title: Non Raceday Inquiry RIU v BRW Wate - Reserved Decision dated 7 December 2016 - Chair, Mr RG McKenzie

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Decision:

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association

IN THE MATTER of Information No. A7219

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND BROOK ROBERT WILLIAM WATE of Waddington, Licensed Handler

Respondent

Judicial Committee: Mr R G McKenzie (Chairman)

Mr G J Clapp (Committee Member)

Present: Mrs K R Williams, the Informant

Mr B R W Wate, the Respondent

Mr R A Quirk, Registrar

Date of Hearing: 2 December 2016

Date of Decision: 7 December 2016

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY

The Charge

[1] Information No. A7219 alleges that, on the 25th November 2016, the Respondent, being the holder of a Handler’s Licence issued under the Greyhound Racing New Zealand Rules of Racing, having been required under Rule 87.4 a by Racing Investigator, Mrs K L Williams, to supply a sample of his urine to the authorised person, Ms Bach of The Drug Detection Agency (“TDDA”) which was found upon analysis to contain the controlled substance THC acid (cannabis) at a level of 79ng/ml as defined in the Misuse of Drugs Act 1975 in breach of Rule 87.4 b.

[2] Mrs Williams produced a letter dated 30 November 2016 from Mr M R Godber, General Manager of the Racing Integrity Unit, authorising the filing of the information pursuant to Rule 91.2 a.

[3] The information was served on the Respondent on 1st December 2016. He completed the Statement by the Respondent on the information form indicating that he admitted the breach of the Rule.

[4] Mr Wate was present at the hearing of the information and, following the reading of the charge and Rule to him, he confirmed that he admitted the charge.

[5] The charge was found proved accordingly.

The Rule

[6] Rule 87. provides as follows:

a. A Steward or Racecourse Investigator may require a Handler, or any other Licensed Person who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, to supply a Sample at a time and such place nominated by the Steward or racecourse Investigator. If so, such Handler, or any other Licensed Person, must comply with such a requirement.

b. A Handler, or any other Licensed Person who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse who, having been required by a Steward or Racecourse Investigator to supply a Sample in accordance with this Rule must not have a sample which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance and/or its metabolites, artefacts or isomers.

The Facts

[7] Mrs Williams presented the following written Summary of Facts:

The Respondent, Brook Robert William Wate, holds a Handler’s Licence under the Rules of Greyhound Racing New Zealand. Mr Wate has held a Handler’s Licence since 2008.

On the 25th November 2016, Handler/Licensed Person testing was conducted at the Christchurch GRC meeting. Ten licensed people were selected for testing. (Mrs Williams told the Committee that this was the first occasion on which Handlers had been tested).

Mr Wate was served with a Drug Testing Notification Form by Racing Investigator Mrs Kylie Williams at 10.50am.

Mr Wate supplied the required urine sample, U276638, to the authorised agent Ms Bach from The Drug Detection Agency (TDDA) at 11.21am.

Mr Giller, TDDA, advised by telephone that Mr Wate’s sample showed a non-negative result for THC (cannabis).

Mr Giller and Mr Wate were interviewed and Mr Wate confirmed that he had used cannabis the weekend prior to the race meeting. Mr Wate was advised that the sample was to be forwarded to ESR for analysis.

On the 30th November 2016, TDDA forwarded the confirmation from ESR that Mr Wate’s sample U276147 was Positive for THC Acid with a level of 79ng/ml.

Mr Wate was issued with a written notice on 1st December 2016 advising him that his Handler’s Licence was automatically withdrawn under Rule 87.4 d and that he will be required to produce a clear sample before being having his licence reinstated.

Penalty Submissions of the Informant

[8] Mrs Williams presented the following written submissions in relation to penalty:

1. Mr Wate has pleaded guilty at the first opportunity to a charge of a breach of Rule 87.4 d for supplying a sample of his urine which was found upon analysis to contain the controlled substance THC acid (cannabis) at a level of 79ng/ml.

2. Mr Wate has not previously been charged with a breach of this Rule.

3. The purpose of the drug testing rules is to enable testing to be carried out on a Racecourse to ensure that licence holders are drug free. The safety and welfare of both participants and greyhounds is paramount. There is the constant need to maintain a healthy and safe workplace, and secondly to maintain the integrity of the industry.

4. Although the handling of a dog at a race meeting does not carry the same degree of danger or potential for injury as riding a 500kg horse, there are other factors that require a handler to be drug free. They are handling in a working environment and are the face of Greyhound Racing, being constantly on Trackside, therefore they need to portray the industry in a positive way.

5. Licence holders sign their licences advising that they are aware of the Rules and will abide by them which includes being aware of their obligations under the Rules to present themselves free of the influences of any drugs.

6. Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975.

7. The penalty provisions that apply in this case are outlined in Rule 88.1

88.1 Any Person found guilty of an Offence under these Rules shall be liable to:

a. a fine not exceeding $10,000.00 for any one (1) Offence; and/or

b. Suspension; and/or

c. Disqualification; and/or

d. Warning Off.

8. Sentencing Principles –

The four principals of sentencing can be summarised briefly

• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

• In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offences.

• A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.

• The need to rehabilitate the offender should be taken into account.

The first three principles are particularly important here.

9. Relevant Precedents –

In addition to the sentencing principles, the Judicial Committee should have regard to relevant precedents in Harness Racing. These clearly highlight the fact that the use of any drug cannot be tolerated in racing.

R.I.U v N Bishop 1 August 2012

Subject: Junior Horsewoman – controlled substance THC acid (Cannabis) 300ng/ml – suspended for 6 months, costs $397.21. Extract from JCA decision: “The use of drugs seriously impugns the integrity of racing, and in particular, the safety of horsemen and women and horses being driven at race meetings.”

R.I.U. v I J Brownlee 24 December 2015

Subject: Open Horseman - controlled substance THC acid (Cannabis) 73ng/ml – second offence suspended for 9 months, costs $187.50. Extract from JCA decision:“Both the informant and respondent made reference to the relatively low level of THC referred to in the Analyst Certificate (73ng/ml). We have not placed too much weight on this submission given that according to the Analyst Certificate “THC Acid levels do not indicate impairment or when or how much cannabis is used. …and send a clear message to other industry participants that there is no place for illegal substance use within the industry.”

R.I.U. v G J Thomas 17 July 2014

Subject: Open Horseman - controlled substance THC acid (Cannabis) 220ng/ml – suspended for 5 months, costs $172.20. Extract from JCA decision: “There is a need to hold Mr Thomas accountable and to denounce his actions. There is also a need to impose a penalty that emphasises general deterrence.”

10. Further penalties that should be considered are those imposed against trackwork riders, these range between 6 weeks and 2 months’ suspensions.

R.I.U v L S Burton 23 September 2016

Subject: Trackwork Rider – controlled substance THC acid (Cannabis) 30ng/ml – suspended for 6 weeks, costs $187.50.

R.I.U v H L Burrows 14 December 2015

Subject: Trackwork Rider – controlled substance THC acid (Cannabis) – suspended for 2 months, costs $187.50.

R.I.U v N Teeluck 30 January 2016

Subject: Apprentice Jockey – controlled substance THC acid (Cannabis) >300ng/ml – suspended for 13 weeks – second offence, costs $187.50.

11. Aggravating Features –

Mr Wate should be well aware that the use of cannabis is prohibited under the Rules and he has admitted using cannabis in the weekend prior to the race meeting and admits to smoking it most weekends.

12. This Rule was introduced in February of this year so licence holders have had several months to change their behaviour to comply with this Rule.

13. Mitigating Factors –

Mr Wate has been very forthcoming during the inquiry and admitted the breach at the first opportunity.

14. Conclusion –

Given that the standard penalty imposed on track work riders is a 6 weeks’ suspension and with the obvious reduced danger with Handlers, the Racing Integrity Unit seeks a suspension of Mr Wate’s Handler’s licence for a period of 4 weeks and/or an appropriate fine.

15. The R.I.U. are seeking costs of $187.50, being the cost of the sample analysis.

Penalty Submissions of the Respondent

[9] Mr Wate told the Committee that he had made an error by choosing to use an illicit substance while playing golf on the previous Sunday. He was asked to submit to a drug test at the race meeting. He was aware that he may have been in some trouble, having to submit to a drug test, but he nevertheless cooperated. He freely acknowledged that he was aware that there was zero tolerance in the industry when it came to drugs.

[10] Mr Wate urged the Committee to impose the penalty as submitted by Mrs Williams in her penalty submissions and not a greater penalty.

[11] Mr Wate said that he was employed full-time in the greyhound racing industry. It had been difficult for him telling his employer whom, he felt, he had let down. He was anxious to provide a clear sample at the first opportunity, Mr Wate said.

[12] Mr Wate said that he had formerly trained greyhounds in Wellington and had held a Handler’s Licence since well before 2008 as stated in the penalty submissions, perhaps 2004 or 2005, he said. In all that time, Mr Wate said, he had not committed any breach of any Rule.

[13] He admitted to being a long time cannabis user but intended to address that and is determined not to reoffend. He accepted that he has brought the industry into disrepute and he regretted that, he said. Greyhounds are his passion, he said.

Reasons for Penalty

[14] This charge against Mr Wate, and the charge against another Handler from the same race meeting, are the first charges against a Handler/Licensed Person under Rule 87.4 b of the Rules of New Zealand Greyhound Racing Association of supplying a urine sample which tested positive to a controlled drug – in this case, cannabis. We were told that the Rule came into effect in February 2016.

[15] Mr Wate was one of a number of handlers who were selected for random drug testing at the meeting of Christchurch Greyhound Racing Club at Addington Raceway on 25th November 2016.

[16] The Penalty Guide provides no starting point for a breach of the Rule and, of course, there are no previous decisions that can assist us. In any event, each case will be different.

[17] The best guide would seem to be those cases in the thoroughbred code involving trackwork riders, with the obvious distinction that the risk of physical harm to a person or animal is less in the case of a greyhound handler affected by cannabis.

[18] Mrs Williams referred us to two such cases involving trackwork riders – Burton and Burrows – in which the terms of suspension were 6 weeks and 2 months respectively. The Committee is also aware of two very recent cases in the North Island. In each of those cases, the trackwork rider concerned received a 6 weeks’ suspension for cannabis.

[19] Turning to the particular circumstances of the present case, we were told that Mr Wate had cooperated with the authorities during the course of the investigation and had admitted the breach at the first opportunity. The Committee was impressed with Mr Wate’s frankness during the hearing and his apparent genuine remorse. Those are mitigating factors. Mr Wate admitted to Mrs Williams that he had used cannabis during the weekend prior to the race meeting and he confirmed this to the Committee at the hearing and also that he did use cannabis on a reasonably regular basis. We also note that the level of the reading was at the low end but, at the same time, we acknowledge that there is a “zero tolerance”.

[20] Mrs Williams’ penalty submission was for a term of suspension of 4 weeks “and/or an appropriate fine”. Having regard to all of the circumstances and taking the trackwork rider penalties as a guide, we accept that that submission is appropriate. A suspension is called for to satisfy the general principles of sentencing which are well-established – to hold the offender accountable for his actions, to promote in the offender a sense of responsibility, to denounce the conduct of the offender and to deter the offender or other persons from committing the same or a similar offence. Mrs Williams referred to these principles in her penalty submissions. The Committee has also had regard, as always, to the need to maintain integrity and public confidence in greyhound racing.

Penalty

[21] Mr Wate’s Handler’s Licence was withdrawn from 1st December 2016. Subject to his providing a clear sample, his licence is reinstated as from that date.

[22] Mr Wate’s Handler’s Licence is suspended as from 1st December 2016 up to and including 29th December 2016 – 4 weeks.

Costs

[23] Mr Wate is ordered to pay to the Racing Integrity Unit the sum of $187.50 being the costs in relation to the analysis of the urine sample.

[24] There will be no order as to costs.

R G McKENZIE      G J CLAPP

Chairman            Committee Member

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