Non Raceday Inquiry RIU v D Bothamley – decision dated 9 March 2015
ID: JCA14424
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT RIU
Informant
AND DANIEL BOTHAMLEY, Licensed Jockey
Respondent
INFORMATION NO. A4808
COMMITTEE: Prof G Hall, Chairman - Mr P Knowles, Committee Member
DATE OF ORAL DECISION: 1 March 2015
DATE OF WRITTEN DECISION: 9 March 2015
DECISION OF JUDICIAL COMMITTEE
[1] Mr D Bothamley has a problem with his riding weight. On 30 November 2014 prior to his riding at the Otago Racing Club’s meeting at Cromwell he decided to take a tablet containing the diuretic, Frusemide. He knew this was a prohibited substance under the Rules of Racing but believed it would not be detected should he be tested.
[2] Mr Bothamley was one of 12 riders upon whom Mr B Kitto, Racecourse Investigator, served a written notice for the purpose of testing on the day. Unfortunately for Mr Bothamley his belief proved to be unfounded, as when the ESR analysed the sample he had provided to Mr Kitto, it returned a positive result to Frusemide.
[3] As a consequence Mr Kitto’s employer, the RIU, has charged Mr Bothamley, who is a Licensed Rider under the Rules of Racing, with a breach of r 656(1), (2) and (3) of the Rules of Racing (although we note the relevant rule with respect to breach is r 656(3)).
[4] Mr Bothamley is liable to the penalties which may be imposed pursuant to r 803(1)(a), (b) and (c).
[5] Rule 656 of the Rules of Racing states:
(1) A Rider who rides or presents himself to ride a horse, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises shall thereby be deemed to have consented to a sample being obtained from him by or under the supervision of a Registered Medical Practitioner or by an Authorised Person if and whenever the Rider is required by a Stipendiary Steward or Investigator to permit such a sample to be so obtained.
(2) A Stipendiary Steward or Investigator may require a Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, to supply a sample at a time and such place nominated by the Stipendiary Steward or Investigator. If so, such Rider, or any other Licence holder must comply with such a requirement. Any Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, acting in contravention of this Rule shall be reported to NZTR by the Stipendiary Steward or Investigator dealing with the breach and NZTR shall consider whether, in addition to any penalty which may be imposed by the Judicial Committee, such person’s Licence should be reviewed (including having conditions imposed on it), cancelled, withdrawn or suspended under Rule 322(1) of these Rules.
(3) A Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, who, having been required by a Stipendiary Steward or 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 or diuretic and/or its metabolites, artifacts or isomers.
[6] Rule 803 states:
(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 in 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… ; and/or
(c) a fine not exceeding $20,000.
[7] Mr Kitto produced written permission to file an information from the General Manager of the RIU, Mr M Godber, in accordance with r 903(2)(d) of the Rules of Racing. The letter was dated 20 January 2015.
[8] Mr Bothamley is a licensed Rider. His licence was issued by NZTR.
[9] The notice served on Mr Bothamley advised him that he was required under the Rules of Racing to provide a urine sample for analysis for the presence of any controlled drug as defined by the Misuse of Drugs Act 1975, or other illicit substances or diuretic and/or its metabolites, artifacts or isomers.
[10] Mr Bothamley had his notice served on him at 12.58 pm. He provided a urine sample at 16.40 hours, which was numbered U147639 and was sent to the ESR for analysis.
[11] On the 16 December 2014, ESR advised that Mr Bothamley’s urine sample was analysed for diuretics and the diuretic Frusemide was detected. Mr Bothamley was advised of the result of the ESR analysis and given a copy of the ESR report.
[12] Mr Bothamley was interviewed and advised Mr Kitto that he had obtained by way of a doctor’s prescription the diuretic Frusemide and had used one tablet on the morning of the races. This drug assists in the voiding of urine. He said he had used the pill to assist in losing weight to enable him to ride at the correct weight.
[13] Mr Bothamley confirmed to the Committee that Mr Kitto’s recounting of the statement he had made was correct. He further explained to the Committee that he needed to spend 2 hours in the sauna and this would have necessitated him getting up at 4.30 in the morning as the jockeys left Christchurch at 7 am for Cromwell.
Decision
[14] As Mr Bothamley has admitted the breach, it is found to be proved.
Submissions as to penalty
[15] Mr Kitto submitted that NZTR has a drug free policy in terms of all riders whether they ride in races, trials or in track work. It is important to maintain integrity and health and safety standards in the work place. All riders and trainers have a responsibility to the owners of valuable horses to ensure that horses are not placed in danger by having a drug-impaired rider on its back.
[16] Mr Kitto identified a number of previous JCA decisions with respect to r 656 which he believed would assist the Committee:
NZTR v PT Holmes – 28.12.2010 fined $1000.
NZTR v DW Stackhouse – 09.04.2011 fined $650.
RIU v JS Bullard – 03.06.2012 fined $1100 – 2nd offence
RIU v KC Walters – 03.06.2012 fined $500.
RIU v BR Lammas – 28.05.2012 fined $600.
RIU v LD McGregor – 25.05.2012 fined $400.
[17] Mr Kitto stated that Mr Bothamley is a senior rider and has been licensed in the industry since 2003. Mr Bothamley’s licence history evidenced he had been unable to make his correct riding weight on 14 occasions. However, this was the first time he had committed a breach of the drug rules.
[18] Mr Kitto emphasised that Mr Bothamley is an experienced jockey who well understands the Rules of Racing.
[19] Mr Kitto submitted that a fine of between $500 and $750 was appropriate in the circumstances of this offending. He noted, in particular, this was Mr Bothamley’s first offence of this nature. The RIU also sought costs for ESR analysis testing of $150.
[20] Mr Bothamley submitted that he had admitted the breach at the earliest opportunity, had co-operated with the stewards’ inquiry, and had consented to the matter being heard on raceday to minimise costs. This was his first breach of the drug rules, despite the fact he had had on-going weight issues.
[21] Mr Bothamley submitted a suspension was appropriate, rather than a fine. He stated he was not in a position to meet a financial penalty. In response to questioning by the Committee, he stated he had 2 or 3 rides on a typical raceday.
[22] Mr Kitto submitted that if the Committee was to consider a suspension, it should be one of 5 days.
Decision as to penalty
[23] We accept Mr Kitto’s submission that it is important to maintain integrity and health and safety standards in the work place. It is therefore important to denounce the respondent’s actions and to hold him accountable for what he has admitted to be a deliberate decision to take a diuretic on the morning of raceday, despite the fact he knew it was contrary to the Rules of Racing. His belief it was not detectable has proven to be misguided. Deterrence, both general and specific, is a further consideration.
[24] We have regard to Mr Bothamley’s admission of the breach and the forthright nature of his submissions to this Committee, and his frankness when questioned by Mr Kitto.
[25] His record is clear under this Rule.
[26] We have had regard to the decisions cited by Mr Kitto and note there were unusual circumstances in McGregor, which led to the light penalty that was imposed in that case.
[27] We believe if we were to fine Mr Bothamley we would be looking at a fine in the region of $550 to $650. We have looked at the number of rides Mr Bothamley has had this season and have compared this to the number of race meetings held in that time. We calculate he has averaged two rides per meeting.
[28] Mr Bothamley rides solely in the South Island, which we factor into our calculation. Having regard to his culpability, the comparative cases, and the mitigating factors, we believe a four-day suspension is appropriate.
[29] Mr Bothamley is suspended from riding at the end of racing on 5 March up to and including 19 March 2015. This is 4 South Island days.
[30] We order costs of $150 to cover the ESR analysis testing.
[31] As the matter was heard on raceday there are no JCA costs.
Dated at Dunedin this 9th day of March 2015.
Geoff Hall Chairman
Paul Knowles Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 02/03/2015
Publish Date: 02/03/2015
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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penaltyrequired:
decisiondate: 02/03/2015
hearing_title: Non Raceday Inquiry RIU v D Bothamley - decision dated 9 March 2015
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT RIU
Informant
AND DANIEL BOTHAMLEY, Licensed Jockey
Respondent
INFORMATION NO. A4808
COMMITTEE: Prof G Hall, Chairman - Mr P Knowles, Committee Member
DATE OF ORAL DECISION: 1 March 2015
DATE OF WRITTEN DECISION: 9 March 2015
DECISION OF JUDICIAL COMMITTEE
[1] Mr D Bothamley has a problem with his riding weight. On 30 November 2014 prior to his riding at the Otago Racing Club’s meeting at Cromwell he decided to take a tablet containing the diuretic, Frusemide. He knew this was a prohibited substance under the Rules of Racing but believed it would not be detected should he be tested.
[2] Mr Bothamley was one of 12 riders upon whom Mr B Kitto, Racecourse Investigator, served a written notice for the purpose of testing on the day. Unfortunately for Mr Bothamley his belief proved to be unfounded, as when the ESR analysed the sample he had provided to Mr Kitto, it returned a positive result to Frusemide.
[3] As a consequence Mr Kitto’s employer, the RIU, has charged Mr Bothamley, who is a Licensed Rider under the Rules of Racing, with a breach of r 656(1), (2) and (3) of the Rules of Racing (although we note the relevant rule with respect to breach is r 656(3)).
[4] Mr Bothamley is liable to the penalties which may be imposed pursuant to r 803(1)(a), (b) and (c).
[5] Rule 656 of the Rules of Racing states:
(1) A Rider who rides or presents himself to ride a horse, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises shall thereby be deemed to have consented to a sample being obtained from him by or under the supervision of a Registered Medical Practitioner or by an Authorised Person if and whenever the Rider is required by a Stipendiary Steward or Investigator to permit such a sample to be so obtained.
(2) A Stipendiary Steward or Investigator may require a Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, to supply a sample at a time and such place nominated by the Stipendiary Steward or Investigator. If so, such Rider, or any other Licence holder must comply with such a requirement. Any Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, acting in contravention of this Rule shall be reported to NZTR by the Stipendiary Steward or Investigator dealing with the breach and NZTR shall consider whether, in addition to any penalty which may be imposed by the Judicial Committee, such person’s Licence should be reviewed (including having conditions imposed on it), cancelled, withdrawn or suspended under Rule 322(1) of these Rules.
(3) A Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, who, having been required by a Stipendiary Steward or 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 or diuretic and/or its metabolites, artifacts or isomers.
[6] Rule 803 states:
(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 in 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… ; and/or
(c) a fine not exceeding $20,000.
[7] Mr Kitto produced written permission to file an information from the General Manager of the RIU, Mr M Godber, in accordance with r 903(2)(d) of the Rules of Racing. The letter was dated 20 January 2015.
[8] Mr Bothamley is a licensed Rider. His licence was issued by NZTR.
[9] The notice served on Mr Bothamley advised him that he was required under the Rules of Racing to provide a urine sample for analysis for the presence of any controlled drug as defined by the Misuse of Drugs Act 1975, or other illicit substances or diuretic and/or its metabolites, artifacts or isomers.
[10] Mr Bothamley had his notice served on him at 12.58 pm. He provided a urine sample at 16.40 hours, which was numbered U147639 and was sent to the ESR for analysis.
[11] On the 16 December 2014, ESR advised that Mr Bothamley’s urine sample was analysed for diuretics and the diuretic Frusemide was detected. Mr Bothamley was advised of the result of the ESR analysis and given a copy of the ESR report.
[12] Mr Bothamley was interviewed and advised Mr Kitto that he had obtained by way of a doctor’s prescription the diuretic Frusemide and had used one tablet on the morning of the races. This drug assists in the voiding of urine. He said he had used the pill to assist in losing weight to enable him to ride at the correct weight.
[13] Mr Bothamley confirmed to the Committee that Mr Kitto’s recounting of the statement he had made was correct. He further explained to the Committee that he needed to spend 2 hours in the sauna and this would have necessitated him getting up at 4.30 in the morning as the jockeys left Christchurch at 7 am for Cromwell.
Decision
[14] As Mr Bothamley has admitted the breach, it is found to be proved.
Submissions as to penalty
[15] Mr Kitto submitted that NZTR has a drug free policy in terms of all riders whether they ride in races, trials or in track work. It is important to maintain integrity and health and safety standards in the work place. All riders and trainers have a responsibility to the owners of valuable horses to ensure that horses are not placed in danger by having a drug-impaired rider on its back.
[16] Mr Kitto identified a number of previous JCA decisions with respect to r 656 which he believed would assist the Committee:
NZTR v PT Holmes – 28.12.2010 fined $1000.
NZTR v DW Stackhouse – 09.04.2011 fined $650.
RIU v JS Bullard – 03.06.2012 fined $1100 – 2nd offence
RIU v KC Walters – 03.06.2012 fined $500.
RIU v BR Lammas – 28.05.2012 fined $600.
RIU v LD McGregor – 25.05.2012 fined $400.
[17] Mr Kitto stated that Mr Bothamley is a senior rider and has been licensed in the industry since 2003. Mr Bothamley’s licence history evidenced he had been unable to make his correct riding weight on 14 occasions. However, this was the first time he had committed a breach of the drug rules.
[18] Mr Kitto emphasised that Mr Bothamley is an experienced jockey who well understands the Rules of Racing.
[19] Mr Kitto submitted that a fine of between $500 and $750 was appropriate in the circumstances of this offending. He noted, in particular, this was Mr Bothamley’s first offence of this nature. The RIU also sought costs for ESR analysis testing of $150.
[20] Mr Bothamley submitted that he had admitted the breach at the earliest opportunity, had co-operated with the stewards’ inquiry, and had consented to the matter being heard on raceday to minimise costs. This was his first breach of the drug rules, despite the fact he had had on-going weight issues.
[21] Mr Bothamley submitted a suspension was appropriate, rather than a fine. He stated he was not in a position to meet a financial penalty. In response to questioning by the Committee, he stated he had 2 or 3 rides on a typical raceday.
[22] Mr Kitto submitted that if the Committee was to consider a suspension, it should be one of 5 days.
Decision as to penalty
[23] We accept Mr Kitto’s submission that it is important to maintain integrity and health and safety standards in the work place. It is therefore important to denounce the respondent’s actions and to hold him accountable for what he has admitted to be a deliberate decision to take a diuretic on the morning of raceday, despite the fact he knew it was contrary to the Rules of Racing. His belief it was not detectable has proven to be misguided. Deterrence, both general and specific, is a further consideration.
[24] We have regard to Mr Bothamley’s admission of the breach and the forthright nature of his submissions to this Committee, and his frankness when questioned by Mr Kitto.
[25] His record is clear under this Rule.
[26] We have had regard to the decisions cited by Mr Kitto and note there were unusual circumstances in McGregor, which led to the light penalty that was imposed in that case.
[27] We believe if we were to fine Mr Bothamley we would be looking at a fine in the region of $550 to $650. We have looked at the number of rides Mr Bothamley has had this season and have compared this to the number of race meetings held in that time. We calculate he has averaged two rides per meeting.
[28] Mr Bothamley rides solely in the South Island, which we factor into our calculation. Having regard to his culpability, the comparative cases, and the mitigating factors, we believe a four-day suspension is appropriate.
[29] Mr Bothamley is suspended from riding at the end of racing on 5 March up to and including 19 March 2015. This is 4 South Island days.
[30] We order costs of $150 to cover the ESR analysis testing.
[31] As the matter was heard on raceday there are no JCA costs.
Dated at Dunedin this 9th day of March 2015.
Geoff Hall Chairman
Paul Knowles Committee Member
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