Non Raceday Inquiry RIU v Mr R – Decision dated 9 June 2016 – Chair, Prof G Hall
ID: JCA15356
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 Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND R
Licensed Amateur Horseman
Respondent
Information: A5021
Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Member
Appearing: Mr P Lamb, Racing Investigator for the Informant
Mr R Sandford for the Respondent
DECISION OF JUDICIAL COMMITTEE
[1] Information No A5021 alleges that on 25 February 2016, Mr R, being the holder of an Advanced Amateur Horseman’s licence issued under the New Zealand Rules of Harness Racing, having been required under r 226(2)(d) by Racecourse Inspector Mrs Williams to supply a sample of his urine, supplied a sample to the authorised person, Ms Giller, which was found upon analysis to contain the controlled substance THC acid at a level of 41 ng/ml, (cannabis), as defined in the Misuse of Drugs Act, 1975. The respondent is alleged to have thereby committed a breach of r 512(1) of the New Zealand Rules of Harness Racing and is liable to the penalties that may be imposed on him pursuant to the provisions of r 1003(1)(a), (b) and (c).
[2] Rule 512(1) provides:
Every horseman commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act.
[3] Rule 1003(1) provides:
A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) a fine not exceeding $10,000; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months
[4] Mr Godber, General Manager of the RIU, authorised the laying of the charge alleging a breach of r 512(1) by a letter to Mrs Williams dated 1 March 2016.
[5] A telephone conference with the parties was held on 18 May at which leave was granted to withdraw a further information, information No A6652. This matter was dealt with in our minute of 20 May and need not be considered further.
[6] During this teleconference the respondent through his lawyer, Mr Sandford, admitted the breach of r 512(1) of the Rules of Harness Racing.
[7] A hearing was held at Addington Raceway on 1 June and Mr R confirmed he admitted the breach of r 512(1). The breach is thus found to be proved.
[8] The parties made both oral and written submissions as to penalty and suppression.
Summary of facts
[9] There was an agreed summary of facts.
[10] The respondent, Mr R, is 57 years of age, and holds Advanced Amateur Driver, a Licence to Train and Trials Horseman’s licences under the Rules of Harness Racing New Zealand. Mr R has held an Advanced Amateur Driver licence since May 2009 and a trainer’s licence for eleven seasons on and off since 1986/87.
[11] On 25 February 2016 driver drug testing was conducted at the NZMTC meeting. Twelve drivers were selected for testing. One driver was Mr R, and Racecourse Inspector Mrs Williams served him with a Drug Testing Notification Form at 16.40. Mr R had a drive in Race 1, the Bishopdale/Bush Inn TAB’s & Tavern Harewood Mobile Pace, at 17.06hrs.
[12] Mr R supplied the required urine sample, U238868, to the authorised agent Ms Giller from The Drug Detection Agency (TDDA) at 17.31hrs. Ms Giller advised by telephone at 17.42hrs that Mr R’s sample showed a non-negative result for THC (cannabis).
[13] Ms Giller and Mr R were interviewed at 17.48hrs and both confirmed that there were no problems associated with the taking of the sample and that it was to be forwarded to ESR for analysis.
[14] On 1 March TDDA forwarded the confirmation from ESR that Mr R’s sample U238868 was positive for THC Acid with a level of 41 ng/ml. Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975. Mr R advised the RIU that he had used cannabis in the past for medicinal purposes only.
[15] Mr R was issued with a written notice on 3 March 2016 advising him that his Advanced Amateur and Trials horseman’s licences were automatically suspended under r 514(2)(b) and that he would be required to produce a clear sample before being able to drive at any race meeting, trial or work out under r 514(2A).
Informant’s submissions
[16] The purpose of the drug testing rules was identified as being to enable random testing to be carried out at any trial, race meeting or public training track at any time to ensure that drivers drive drug free. Testing had been conducted for a number of years and drivers were aware of their obligations under the Rules to present themselves free of the influences of any drugs. The safety and welfare of both drivers and horses was paramount.
[17] The RIU emphasised four principles of sentencing should be considered in this case:
• 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.
[18] The RIU referred this Committee to 3 Harness Racing cases:
RIU v Bishop 1 August 2012 — Junior Horsewoman – controlled substance THC acid (Cannabis) — 300 ng/ml – suspended for 6 months, costs $397.21.
R.I.U. v Brownlee 24 December 2015 — Open Horseman — controlled substance THC acid (Cannabis) — 73 ng/ml — second offence suspended for 9 months, costs $187.50.
RIU v Thomas 17 July 2014 — Open Horseman — controlled substance THC acid (Cannabis) — 220 ng/ml – suspended for 5 months, costs $172.20.
[19] The RIU identified as an aggravating factor the fact that Mr R was well aware the use of cannabis was prohibited under the Rules but thought that it would have been out of his system come race day.
[20] The RIU identified as mitigating factors that Mr R had been very forthcoming during the inquiry and had admitted the breach at the first opportunity. Mr R had not previously been charged with a breach of this rule.
[21] The RIU sought a suspension of Mr R’s Advanced Amateur and Trials Horseman’s Licence for a period of 9 months. This took into account the restricted opportunities for amateur drivers. Mr Lamb said the Amateur Drivers Association was permitted to have 2 races per month in the South Island and 2 in the North Island. On occasions they had more. This thus allowed for approximately 24 drives per year in the South Island. Mr R had had 89 drives since 2008/09. In the last 4 seasons: 22, 17, 18, and 12 drives so far this season. Given the number of drives that would be taken into account, the RIU believed that 9 months was a starting point for a suspension for an amateur driver.
[22] The RIU also sought costs of $187.50, being the cost of the analysis of the sample.
[23] With respect to name suppression, the RIU observed that the Rules of Harness Racing do not contain a specific provision empowering a Judicial Committee to order non-publication of a respondent’s name. However, pursuant to the Rules, a Judicial Committee could determine its procedure as it thought fit.
[24] The RIU identified previous cases within the racing industry where suppression of name had been sought:
NZTR v Reti-Mathieson 2006 — Track work rider tested positive to Cannabis — sought name suppression on grounds that it would affect his employment in the Industry — denied.
NZTR v Ormsby, Harris, Waddell, Carmine 2006 — Jockeys charged with misconduct relating to text messaging a female apprentice — suppression sought for all details of the complainant, her employer and any personal information that might identify her — suppression granted.
HRNZ v B 2010 — Unlicensed member of the public attending a race meeting did an act which a Judicial Committee deemed detrimental to the interests of racing — suppression sought of the defendant’s and employer’s name — suppression granted.
[25] Mr Lamb stated that the RIU’s position was neither for nor against suppression of name, and that they would continue to maintain a neutral position in relation to the application.
Respondent’s submissions
[26] The respondent opened his submissions by accepting the level identified in the report from the TDDA and emphasising it was equally relevant that the summary of facts recorded that Mr R had previously advised he had used cannabis in the past for medicinal purposes only.
[27] Mr Sandford explained that Mr R was a self-employed man, aged 57, who lived with his wife and children in a small community. During his career, Mr R had worked in a number of areas and over the last dozen or so years he was well known as a trader. In Mr R’s own words, he had had a ‘hard life’ but by sheer grit and determination he had had a successful marriage and had 3 now grown-up children and one grandchild. Mr R lived a modest lifestyle.
[28] Mr R had never been in trouble with the law and was described by Mr Sandford as being “a first offender in front of this Committee”. Mr R had at all times cooperated with the RIU and had not stood in the way of a proper investigatory procedure being administered.
[29] Mr Sandford submitted, “It is crucial to this whole case that the Committee understands and accepts that the use of cannabis by Mr R, although it can never be condoned, has clear and firm links to his past medical history, the treatment that he has suffered, and the manner in which he has managed his life to the present.” Mr R admitted he had had a “puff” of cannabis approximately 3 days prior to the testing, as it reduced pressure and maintained his general well being and controlled his emotions.
[30] There were a number of matters that Mr Sandford highlighted in Dr Wilkinson’s report:
The THC reading was at a level of 41ng/ml.
There was, “[n]o link whatsoever between the presence of this metabolite and the ability to perform tasks requiring judgement or coordination, unlike a breath alcohol test.” And there was no THC/creatinine ratio, which would give an indication of usage frequency or amount.
Mr R’s medical condition and the nature of the treatment he received were described in some detail.
The use of cannabis allowed Mr R to remain well.
Name suppression and suppression of details surrounding the charge was supported, as their publication would “greatly outweigh ‘the crime’ and serve no useful purpose to HRNZ or Mr R and his family.”
Dr Wilkinson examined Mr R in his capacity as HRNZ Medical Adviser.
[31] With reference to suppression, Mr Sandford said Mr R accepted that this was an unusual request in the forum of the Rules of Harness Racing. He submitted the law relating to name suppression and publication in general was established in the Criminal Procedure Act 2011 and it should be applied to tribunals and committees, in the interests of natural justice. He then drew this Committee’s attention to the relevant caselaw.
[32] In exercising the discretion, Mr Sandford said, this Committee’s duty was to review the facts put in front of it, including the medical evidence, which included Dr Wilkinson’s 2 medical reports. The second of Dr Wilkinson’s reports stated that he believed it was “completely reasonable to suppress all evidence around this charge from public knowledge on medical grounds” and he later requested that there be “serious consideration from the panel regarding suppression.”
[33] Mr Sandford emphasised that this Committee should have regard to Mr R’s full medical history, dating back to the late 1970s, the nature of his condition and the treatment he had received, some of which would be regarded today as inappropriate, and the fact Mr R had stopped the prescribed medication because of its side-effects, and had turned to cannabis.
[34] Mr Sandford said Mr R conceded that his use of cannabis was a breach of the Misuse of Drugs Act for which penalties could be imposed by way of fine and/or imprisonment. However, the medical assessment of Mr R, and the perceived benefit of the use of cannabis, suggested this “self-treatment” had permitted Mr R to carry on a normal, successful life, run a successful business and be a good father to his family.
[35] Mr Sandford expressed Mr R’s concern that the publication of the facts of this case, in particular his admission of a charge, if in fact a matter of public record, could be used by the New Zealand Police to bring a charge against him under the Misuse of Drugs Act. Although, he conceded such an event was unlikely, it was nevertheless a possibility and he submitted that it provided further evidence of the potential for extreme hardship should the publication of the decision result in Mr R facing additional charges under the Misuse of Drugs Act.
[36] Mr Sandford stated that Mr R acknowledged that a period of suspension was inevitable, but noted it was important to closely examine the cases identified by the RIU.
[37] The Bishop case was observed to be very similar to Mr R’s in that Ms Bishop, as a junior horsewoman, had limited drives in the industry in a similar way that Mr R did, as a consequence of his amateur licence. Both Ms Bishop and Mr R could be distinguished from full-licensed professionals who drove on a regular basis.
[38] Mr Sandford said it was also relevant to record that in Bishop the THC acid level was in excess of 300 ng/ml, which was nearly 8 times higher than the level recorded in Mr R’s case. The very high reading in Bishop suggested a recent use of cannabis. Ms Bishop had also been convicted of a charge of possession of cannabis in the criminal courts in 2007. In reality, he submitted, she should have been treated as a second offender. Mr R was clearly a first offender. He submitted a good case could be made out that the penalty handed down to Mr R could and should be less than that imposed upon Ms Bishop.
[39] The case of Brownlee could be distinguished on the ground that Mr Brownlee was a second offender and his level was 73 ng/ml, which was nearly double the level of Mr R’s. Mr Sandford submitted the 9 months’ suspension in Brownlee was not relevant to Mr R’s position other than the fact that the decision recorded that Mr Brownlee said he had used cannabis for medicinal purposes.
[40] With respect to Thomas, the level of 220 ng/ml was nearly 6 times higher than that of Mr R. The consumption of cannabis by Mr Thomas was a one-off incident arising out of his attending a party. Mr Sandford submitted the point of difference between Mr R and Mr Thomas was that Mr Thomas consciously consumed cannabis for recreational party purposes, whereas the use of cannabis by Mr R was based on medicinal grounds.
[41] Mr Sandford concluded this aspect of his submission by stating the fact that Mr R was a first offender, that there was a medical background to his use of cannabis, and that he was extremely remorseful, as was evidenced by his attending the hearing with his wife, provided this Committee with an opportunity to impose “a realistic penalty of less than 6 months’ suspension and/or impose a modest fine”.
[42] Mr Sandford emphasised that Mr R had indicated that he was now avoiding the use of cannabis and he had been taking an alternative medicine prescribed by Dr Wilkinson. On 25 May 2016 he had voluntarily attended a Drug Detection Agency and was tested and had provided a nil return for cannabis. The relevant report was placed before us.
[43] Mrs R addressed this Committee. She stated she and the respondent had been married for 32 years. He was a hard worker, who was generous with his time, and a great provider for his family. She detailed the respondent’s health issues and the treatment he had received. She emphasised he had used cannabis for medicinal purposes in that it “allowed him to remain well”, and not to get “high”. She recounted the horsemanship skills he had demonstrated over the years and stated his principal hobby and passion was horse racing. She also detailed the care and attention he gave to his horses.
[44] In concluding, Mrs R requested that this Committee consider the impact publication would have on the family’s reputation and business. She emphasised they lived in a small rural town where “everyone knows everyone”. She asked that the case be dealt with compassionately, with this Committee giving weight to the insight it now had into Mr R’s situation.
[45] Mr Sandford produced references from a number of participants in the Harness Racing Industry. All of these people had known the respondent for many years and the sheer volume of references was such that Mr Sandford stated the Committee could “with confidence conclude that although Mr R is … a ‘rough diamond’, he is a man with a heart of gold but with definite medical issues and problems.”
[46] Mr Sandford also described Mr R as a victim of the New Zealand health system and submitted that this Committee could “regard his use of cannabis on irregular occasions as understandable and an attempt on his part to deal with his personality and his past medical condition.”
[47] Finally, Mr Sandford submitted this Committee should order “some form of suppression” as the potential risks of Mr R having “an unexpected reaction” were such that we should adopt “a cautious approach”. There was a potential risk that “extreme hardship” might occur were R’s name or the evidence to be published.
Decision as to suppression
[48] Rule 1111(2) provides:
A Judicial Committee shall have, in addition the powers which are conferred on it by any of these Rules and in Schedule 5, all such powers as are necessary to enable it to discharge its functions.
[49] Section 200 of the Criminal Procedure Act 2011 states:
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b) cast suspicion on another person that may cause undue hardship to that person; or
(c) cause undue hardship to any victim of the offence; or
(d) create a real risk of prejudice to a fair trial; or
(e) endanger the safety of any person…..
[50] We are satisfied that r 1111(2) is couched in sufficiently broad terms to empower a Judicial Committee to suppress a respondent’s name and the details of a case where the Committee is satisfied that this an appropriate course of action. In this regard, we take guidance from s 200 of the Criminal Procedure Act even though it is not directly relevant to a harness racing hearing. That provision speaks of extreme hardship (“a very high level of hardship”: Robertson v Police [2015] NZCA 7, at [48]) to the respondent or danger to the safety of any person.
[51] We note the Court of Appeal in Robertson also stated with reference to s 200:
The intention is clear. Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high. The onus is on the applicant to satisfy the judge that suppression should be ordered.
[52] We have thus considered the issue of suppression very carefully and cautiously. We have had regard also to RM v Police [2012] NZHC 2080, at [43] where Priestley J emphasised in the High Court that the principle of open justice and the need for media scrutiny must be given appropriate weight and is the starting point. Thus, something more than the consequence ordinarily associated with appearing in court, viz curiosity, criticism, social ostracism, and embarrassment, is required. The decision as to the damaging effect of publication will depend on “the unique factual and personal circumstances” of each case.
[53] In this regard, the Committee has had the benefit of 2 medical reports prepared by Dr Wilkinson. He is very experienced in the relevant health area. He expresses concern that publication of R’s name and details surrounding the charge (and by this we take him to be referring to the reasons Mr R had resorted to the use of cannabis) would “greatly outweigh ‘the crime’ and serve no useful purpose to HRNZ or Mr R and his family.” We make no comment on the respondent’s medical condition other than to say we accept the evidence to the effect that this condition is serious in nature and that it has endured throughout Mr R’s adult life.
[54] If we view the issue in the context of s 200 of the Criminal Procedure Act, we are satisfied publication would be likely to result in “extreme hardship” to Mr R and “to endanger [his] safety”.
[55] We take guidance from D (CA443/2015) v Police [2015] NZCA 541, a recent case which Mr Sandford highlighted in his oral submission. The Court of Appeal states at [12]:
The exercise of a discretion requires the Court to weigh the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending … and the likely impact publication will have on his or her prospects of rehabilitation, any other circumstances personal to the applicant, the interests of victims and the interests of other affected persons, circumstances personal to the defendant, the views of the victim and the public interest in open justice and in knowing the character of the offender.
[56] As the RIU have adopted a neutral position with this matter, we do not believe it is necessary for us to consider the matter further as to do so will only raise issues that we believe are better to remain unstated in this decision. It suffices for us to state that we have carefully considered the medical evidence that has been placed before us and have balanced the competing interests identified in D and the cases to similar effect, before being satisfied it is appropriate to order suppression of both the respondent’s name and the medical reports that provide the evidential foundation for this order. We see no need to canvass further the s 200 caselaw that Mr Sandford has identified in his thorough and careful submissions.
[57] We order that the respondent’s name and any reference to the nature of his medical condition and its treatment be suppressed.
Decision as to penalty
[58] In determining penalty we have regard to the seriousness of the breach and the degree of culpability. Driving a horse while under the influence of cannabis is clearly a serious matter and the respondent has to be held accountable. However, the level of 41 ng/ml is at the lower end of the scale and there is medical evidence from Dr Wilkinson that cannabis at this level would not impair the respondent’s ability to drive. However, be that as it may, and there has not been evidence to the contrary nor confirmatory evidence, a positive result needs to be denounced and would normally attract a penalty that emphasises both general and specific deterrence. Because of the respondent’s personal circumstances, this factor has less emphasis in this case than might otherwise be considered appropriate.
[59] We take guidance from the cases of Thomas and Bishop and, while the respondent’s level is considerably less than those in these cases, of concern to this Committee is the fact that the respondent has consumed cannabis over a lengthy period of time by way of self-treatment for his on-going medical issue, and has continued to drive in amateur races despite the risk of his being tested and being found to be over the threshold. The respondent was clearly willing to take this risk.
[60] There is force in the RIU’s submission that Mr R has been blasé in his attitude to cannabis, in that he was well aware he could be drug tested at any time. Mr Lamb was correct when he stated the Rules do not distinguish between the use of cannabis for recreational or medicinal purposes. Our concerns in this regard as to the respondent’s future conduct have been allayed somewhat by the medical evidence that an alternative and lawful form of treatment has been found, which provides him with the necessary relief. And we also note he produced a clear sample when tested on 25 May.
[61] We believe when all matters are placed in the balance that Mr R’s breach of r 512 is comparable in seriousness to the breaches in Thomas and Bishop. He has an excellent record and has admitted the breach at the first opportunity. In addition, we have regard to the many references from well-respected identities in the harness racing industry, all of who have attested to Mr R’s personal life, integrity, and his ability around horses.
[62] In determining the length of suspension, we need to consider the irregularity with which the respondent drives. We are told there are approximately 24 amateur races a season in the South Island. Mr R says to add another 4 for the New Zealand Championship in which he has been competing. We believe a suspension marked by a period of months best denounces the respondent’s conduct, although a rough calculation is that he has 2 drives a month. Of significance, is the fact that the mandatory stand down period on the return of a positive sample has meant that the respondent has no longer been able to participate in the New Zealand Amateur Drivers Championship, a series in which he had previously excelled.
[63] We suspend Mr R’s Advanced Amateur Driver and Trials Horseman’s licence for a period of 5 months. The suspension is backdated to 3 March 2016, which was the date on which the respondent was automatically suspended. The suspension ends on 31 July 2016.
[64] The parties’ submissions canvassed the possibility of a fine coupled with a suspension. Having regard to the respondent’s limited means and the fact that there will be a costs order, we see no need to mark the breach further through the imposition of a fine.
Costs
[65] The RIU made no application for costs other than the testing fee of $187.50. Costs in this amount are awarded to the RIU.
[66] JCA costs, are a tad over $2000. It is usual for a costs award to be in the vicinity of 50 to 60 per cent of actual costs.
[67] Again having regard to the information placed before us as to the respondent’s financial circumstances, we believe costs at the level of 50 per cent are appropriate.
[68] Mr R is ordered to pay costs to the JCA of $1000.
Dated at Dunedin this 9th day of June 2016.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 10/06/2016
Publish Date: 10/06/2016
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.
hearingid: 8886ffa52b7d65f2d54c9360936f2cc0
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decisiondate: 10/06/2016
hearing_title: Non Raceday Inquiry RIU v Mr R - Decision dated 9 June 2016 - Chair, Prof G Hall
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 Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND R
Licensed Amateur Horseman
Respondent
Information: A5021
Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Member
Appearing: Mr P Lamb, Racing Investigator for the Informant
Mr R Sandford for the Respondent
DECISION OF JUDICIAL COMMITTEE
[1] Information No A5021 alleges that on 25 February 2016, Mr R, being the holder of an Advanced Amateur Horseman’s licence issued under the New Zealand Rules of Harness Racing, having been required under r 226(2)(d) by Racecourse Inspector Mrs Williams to supply a sample of his urine, supplied a sample to the authorised person, Ms Giller, which was found upon analysis to contain the controlled substance THC acid at a level of 41 ng/ml, (cannabis), as defined in the Misuse of Drugs Act, 1975. The respondent is alleged to have thereby committed a breach of r 512(1) of the New Zealand Rules of Harness Racing and is liable to the penalties that may be imposed on him pursuant to the provisions of r 1003(1)(a), (b) and (c).
[2] Rule 512(1) provides:
Every horseman commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act.
[3] Rule 1003(1) provides:
A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) a fine not exceeding $10,000; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months
[4] Mr Godber, General Manager of the RIU, authorised the laying of the charge alleging a breach of r 512(1) by a letter to Mrs Williams dated 1 March 2016.
[5] A telephone conference with the parties was held on 18 May at which leave was granted to withdraw a further information, information No A6652. This matter was dealt with in our minute of 20 May and need not be considered further.
[6] During this teleconference the respondent through his lawyer, Mr Sandford, admitted the breach of r 512(1) of the Rules of Harness Racing.
[7] A hearing was held at Addington Raceway on 1 June and Mr R confirmed he admitted the breach of r 512(1). The breach is thus found to be proved.
[8] The parties made both oral and written submissions as to penalty and suppression.
Summary of facts
[9] There was an agreed summary of facts.
[10] The respondent, Mr R, is 57 years of age, and holds Advanced Amateur Driver, a Licence to Train and Trials Horseman’s licences under the Rules of Harness Racing New Zealand. Mr R has held an Advanced Amateur Driver licence since May 2009 and a trainer’s licence for eleven seasons on and off since 1986/87.
[11] On 25 February 2016 driver drug testing was conducted at the NZMTC meeting. Twelve drivers were selected for testing. One driver was Mr R, and Racecourse Inspector Mrs Williams served him with a Drug Testing Notification Form at 16.40. Mr R had a drive in Race 1, the Bishopdale/Bush Inn TAB’s & Tavern Harewood Mobile Pace, at 17.06hrs.
[12] Mr R supplied the required urine sample, U238868, to the authorised agent Ms Giller from The Drug Detection Agency (TDDA) at 17.31hrs. Ms Giller advised by telephone at 17.42hrs that Mr R’s sample showed a non-negative result for THC (cannabis).
[13] Ms Giller and Mr R were interviewed at 17.48hrs and both confirmed that there were no problems associated with the taking of the sample and that it was to be forwarded to ESR for analysis.
[14] On 1 March TDDA forwarded the confirmation from ESR that Mr R’s sample U238868 was positive for THC Acid with a level of 41 ng/ml. Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975. Mr R advised the RIU that he had used cannabis in the past for medicinal purposes only.
[15] Mr R was issued with a written notice on 3 March 2016 advising him that his Advanced Amateur and Trials horseman’s licences were automatically suspended under r 514(2)(b) and that he would be required to produce a clear sample before being able to drive at any race meeting, trial or work out under r 514(2A).
Informant’s submissions
[16] The purpose of the drug testing rules was identified as being to enable random testing to be carried out at any trial, race meeting or public training track at any time to ensure that drivers drive drug free. Testing had been conducted for a number of years and drivers were aware of their obligations under the Rules to present themselves free of the influences of any drugs. The safety and welfare of both drivers and horses was paramount.
[17] The RIU emphasised four principles of sentencing should be considered in this case:
• 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.
[18] The RIU referred this Committee to 3 Harness Racing cases:
RIU v Bishop 1 August 2012 — Junior Horsewoman – controlled substance THC acid (Cannabis) — 300 ng/ml – suspended for 6 months, costs $397.21.
R.I.U. v Brownlee 24 December 2015 — Open Horseman — controlled substance THC acid (Cannabis) — 73 ng/ml — second offence suspended for 9 months, costs $187.50.
RIU v Thomas 17 July 2014 — Open Horseman — controlled substance THC acid (Cannabis) — 220 ng/ml – suspended for 5 months, costs $172.20.
[19] The RIU identified as an aggravating factor the fact that Mr R was well aware the use of cannabis was prohibited under the Rules but thought that it would have been out of his system come race day.
[20] The RIU identified as mitigating factors that Mr R had been very forthcoming during the inquiry and had admitted the breach at the first opportunity. Mr R had not previously been charged with a breach of this rule.
[21] The RIU sought a suspension of Mr R’s Advanced Amateur and Trials Horseman’s Licence for a period of 9 months. This took into account the restricted opportunities for amateur drivers. Mr Lamb said the Amateur Drivers Association was permitted to have 2 races per month in the South Island and 2 in the North Island. On occasions they had more. This thus allowed for approximately 24 drives per year in the South Island. Mr R had had 89 drives since 2008/09. In the last 4 seasons: 22, 17, 18, and 12 drives so far this season. Given the number of drives that would be taken into account, the RIU believed that 9 months was a starting point for a suspension for an amateur driver.
[22] The RIU also sought costs of $187.50, being the cost of the analysis of the sample.
[23] With respect to name suppression, the RIU observed that the Rules of Harness Racing do not contain a specific provision empowering a Judicial Committee to order non-publication of a respondent’s name. However, pursuant to the Rules, a Judicial Committee could determine its procedure as it thought fit.
[24] The RIU identified previous cases within the racing industry where suppression of name had been sought:
NZTR v Reti-Mathieson 2006 — Track work rider tested positive to Cannabis — sought name suppression on grounds that it would affect his employment in the Industry — denied.
NZTR v Ormsby, Harris, Waddell, Carmine 2006 — Jockeys charged with misconduct relating to text messaging a female apprentice — suppression sought for all details of the complainant, her employer and any personal information that might identify her — suppression granted.
HRNZ v B 2010 — Unlicensed member of the public attending a race meeting did an act which a Judicial Committee deemed detrimental to the interests of racing — suppression sought of the defendant’s and employer’s name — suppression granted.
[25] Mr Lamb stated that the RIU’s position was neither for nor against suppression of name, and that they would continue to maintain a neutral position in relation to the application.
Respondent’s submissions
[26] The respondent opened his submissions by accepting the level identified in the report from the TDDA and emphasising it was equally relevant that the summary of facts recorded that Mr R had previously advised he had used cannabis in the past for medicinal purposes only.
[27] Mr Sandford explained that Mr R was a self-employed man, aged 57, who lived with his wife and children in a small community. During his career, Mr R had worked in a number of areas and over the last dozen or so years he was well known as a trader. In Mr R’s own words, he had had a ‘hard life’ but by sheer grit and determination he had had a successful marriage and had 3 now grown-up children and one grandchild. Mr R lived a modest lifestyle.
[28] Mr R had never been in trouble with the law and was described by Mr Sandford as being “a first offender in front of this Committee”. Mr R had at all times cooperated with the RIU and had not stood in the way of a proper investigatory procedure being administered.
[29] Mr Sandford submitted, “It is crucial to this whole case that the Committee understands and accepts that the use of cannabis by Mr R, although it can never be condoned, has clear and firm links to his past medical history, the treatment that he has suffered, and the manner in which he has managed his life to the present.” Mr R admitted he had had a “puff” of cannabis approximately 3 days prior to the testing, as it reduced pressure and maintained his general well being and controlled his emotions.
[30] There were a number of matters that Mr Sandford highlighted in Dr Wilkinson’s report:
The THC reading was at a level of 41ng/ml.
There was, “[n]o link whatsoever between the presence of this metabolite and the ability to perform tasks requiring judgement or coordination, unlike a breath alcohol test.” And there was no THC/creatinine ratio, which would give an indication of usage frequency or amount.
Mr R’s medical condition and the nature of the treatment he received were described in some detail.
The use of cannabis allowed Mr R to remain well.
Name suppression and suppression of details surrounding the charge was supported, as their publication would “greatly outweigh ‘the crime’ and serve no useful purpose to HRNZ or Mr R and his family.”
Dr Wilkinson examined Mr R in his capacity as HRNZ Medical Adviser.
[31] With reference to suppression, Mr Sandford said Mr R accepted that this was an unusual request in the forum of the Rules of Harness Racing. He submitted the law relating to name suppression and publication in general was established in the Criminal Procedure Act 2011 and it should be applied to tribunals and committees, in the interests of natural justice. He then drew this Committee’s attention to the relevant caselaw.
[32] In exercising the discretion, Mr Sandford said, this Committee’s duty was to review the facts put in front of it, including the medical evidence, which included Dr Wilkinson’s 2 medical reports. The second of Dr Wilkinson’s reports stated that he believed it was “completely reasonable to suppress all evidence around this charge from public knowledge on medical grounds” and he later requested that there be “serious consideration from the panel regarding suppression.”
[33] Mr Sandford emphasised that this Committee should have regard to Mr R’s full medical history, dating back to the late 1970s, the nature of his condition and the treatment he had received, some of which would be regarded today as inappropriate, and the fact Mr R had stopped the prescribed medication because of its side-effects, and had turned to cannabis.
[34] Mr Sandford said Mr R conceded that his use of cannabis was a breach of the Misuse of Drugs Act for which penalties could be imposed by way of fine and/or imprisonment. However, the medical assessment of Mr R, and the perceived benefit of the use of cannabis, suggested this “self-treatment” had permitted Mr R to carry on a normal, successful life, run a successful business and be a good father to his family.
[35] Mr Sandford expressed Mr R’s concern that the publication of the facts of this case, in particular his admission of a charge, if in fact a matter of public record, could be used by the New Zealand Police to bring a charge against him under the Misuse of Drugs Act. Although, he conceded such an event was unlikely, it was nevertheless a possibility and he submitted that it provided further evidence of the potential for extreme hardship should the publication of the decision result in Mr R facing additional charges under the Misuse of Drugs Act.
[36] Mr Sandford stated that Mr R acknowledged that a period of suspension was inevitable, but noted it was important to closely examine the cases identified by the RIU.
[37] The Bishop case was observed to be very similar to Mr R’s in that Ms Bishop, as a junior horsewoman, had limited drives in the industry in a similar way that Mr R did, as a consequence of his amateur licence. Both Ms Bishop and Mr R could be distinguished from full-licensed professionals who drove on a regular basis.
[38] Mr Sandford said it was also relevant to record that in Bishop the THC acid level was in excess of 300 ng/ml, which was nearly 8 times higher than the level recorded in Mr R’s case. The very high reading in Bishop suggested a recent use of cannabis. Ms Bishop had also been convicted of a charge of possession of cannabis in the criminal courts in 2007. In reality, he submitted, she should have been treated as a second offender. Mr R was clearly a first offender. He submitted a good case could be made out that the penalty handed down to Mr R could and should be less than that imposed upon Ms Bishop.
[39] The case of Brownlee could be distinguished on the ground that Mr Brownlee was a second offender and his level was 73 ng/ml, which was nearly double the level of Mr R’s. Mr Sandford submitted the 9 months’ suspension in Brownlee was not relevant to Mr R’s position other than the fact that the decision recorded that Mr Brownlee said he had used cannabis for medicinal purposes.
[40] With respect to Thomas, the level of 220 ng/ml was nearly 6 times higher than that of Mr R. The consumption of cannabis by Mr Thomas was a one-off incident arising out of his attending a party. Mr Sandford submitted the point of difference between Mr R and Mr Thomas was that Mr Thomas consciously consumed cannabis for recreational party purposes, whereas the use of cannabis by Mr R was based on medicinal grounds.
[41] Mr Sandford concluded this aspect of his submission by stating the fact that Mr R was a first offender, that there was a medical background to his use of cannabis, and that he was extremely remorseful, as was evidenced by his attending the hearing with his wife, provided this Committee with an opportunity to impose “a realistic penalty of less than 6 months’ suspension and/or impose a modest fine”.
[42] Mr Sandford emphasised that Mr R had indicated that he was now avoiding the use of cannabis and he had been taking an alternative medicine prescribed by Dr Wilkinson. On 25 May 2016 he had voluntarily attended a Drug Detection Agency and was tested and had provided a nil return for cannabis. The relevant report was placed before us.
[43] Mrs R addressed this Committee. She stated she and the respondent had been married for 32 years. He was a hard worker, who was generous with his time, and a great provider for his family. She detailed the respondent’s health issues and the treatment he had received. She emphasised he had used cannabis for medicinal purposes in that it “allowed him to remain well”, and not to get “high”. She recounted the horsemanship skills he had demonstrated over the years and stated his principal hobby and passion was horse racing. She also detailed the care and attention he gave to his horses.
[44] In concluding, Mrs R requested that this Committee consider the impact publication would have on the family’s reputation and business. She emphasised they lived in a small rural town where “everyone knows everyone”. She asked that the case be dealt with compassionately, with this Committee giving weight to the insight it now had into Mr R’s situation.
[45] Mr Sandford produced references from a number of participants in the Harness Racing Industry. All of these people had known the respondent for many years and the sheer volume of references was such that Mr Sandford stated the Committee could “with confidence conclude that although Mr R is … a ‘rough diamond’, he is a man with a heart of gold but with definite medical issues and problems.”
[46] Mr Sandford also described Mr R as a victim of the New Zealand health system and submitted that this Committee could “regard his use of cannabis on irregular occasions as understandable and an attempt on his part to deal with his personality and his past medical condition.”
[47] Finally, Mr Sandford submitted this Committee should order “some form of suppression” as the potential risks of Mr R having “an unexpected reaction” were such that we should adopt “a cautious approach”. There was a potential risk that “extreme hardship” might occur were R’s name or the evidence to be published.
Decision as to suppression
[48] Rule 1111(2) provides:
A Judicial Committee shall have, in addition the powers which are conferred on it by any of these Rules and in Schedule 5, all such powers as are necessary to enable it to discharge its functions.
[49] Section 200 of the Criminal Procedure Act 2011 states:
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b) cast suspicion on another person that may cause undue hardship to that person; or
(c) cause undue hardship to any victim of the offence; or
(d) create a real risk of prejudice to a fair trial; or
(e) endanger the safety of any person…..
[50] We are satisfied that r 1111(2) is couched in sufficiently broad terms to empower a Judicial Committee to suppress a respondent’s name and the details of a case where the Committee is satisfied that this an appropriate course of action. In this regard, we take guidance from s 200 of the Criminal Procedure Act even though it is not directly relevant to a harness racing hearing. That provision speaks of extreme hardship (“a very high level of hardship”: Robertson v Police [2015] NZCA 7, at [48]) to the respondent or danger to the safety of any person.
[51] We note the Court of Appeal in Robertson also stated with reference to s 200:
The intention is clear. Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high. The onus is on the applicant to satisfy the judge that suppression should be ordered.
[52] We have thus considered the issue of suppression very carefully and cautiously. We have had regard also to RM v Police [2012] NZHC 2080, at [43] where Priestley J emphasised in the High Court that the principle of open justice and the need for media scrutiny must be given appropriate weight and is the starting point. Thus, something more than the consequence ordinarily associated with appearing in court, viz curiosity, criticism, social ostracism, and embarrassment, is required. The decision as to the damaging effect of publication will depend on “the unique factual and personal circumstances” of each case.
[53] In this regard, the Committee has had the benefit of 2 medical reports prepared by Dr Wilkinson. He is very experienced in the relevant health area. He expresses concern that publication of R’s name and details surrounding the charge (and by this we take him to be referring to the reasons Mr R had resorted to the use of cannabis) would “greatly outweigh ‘the crime’ and serve no useful purpose to HRNZ or Mr R and his family.” We make no comment on the respondent’s medical condition other than to say we accept the evidence to the effect that this condition is serious in nature and that it has endured throughout Mr R’s adult life.
[54] If we view the issue in the context of s 200 of the Criminal Procedure Act, we are satisfied publication would be likely to result in “extreme hardship” to Mr R and “to endanger [his] safety”.
[55] We take guidance from D (CA443/2015) v Police [2015] NZCA 541, a recent case which Mr Sandford highlighted in his oral submission. The Court of Appeal states at [12]:
The exercise of a discretion requires the Court to weigh the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending … and the likely impact publication will have on his or her prospects of rehabilitation, any other circumstances personal to the applicant, the interests of victims and the interests of other affected persons, circumstances personal to the defendant, the views of the victim and the public interest in open justice and in knowing the character of the offender.
[56] As the RIU have adopted a neutral position with this matter, we do not believe it is necessary for us to consider the matter further as to do so will only raise issues that we believe are better to remain unstated in this decision. It suffices for us to state that we have carefully considered the medical evidence that has been placed before us and have balanced the competing interests identified in D and the cases to similar effect, before being satisfied it is appropriate to order suppression of both the respondent’s name and the medical reports that provide the evidential foundation for this order. We see no need to canvass further the s 200 caselaw that Mr Sandford has identified in his thorough and careful submissions.
[57] We order that the respondent’s name and any reference to the nature of his medical condition and its treatment be suppressed.
Decision as to penalty
[58] In determining penalty we have regard to the seriousness of the breach and the degree of culpability. Driving a horse while under the influence of cannabis is clearly a serious matter and the respondent has to be held accountable. However, the level of 41 ng/ml is at the lower end of the scale and there is medical evidence from Dr Wilkinson that cannabis at this level would not impair the respondent’s ability to drive. However, be that as it may, and there has not been evidence to the contrary nor confirmatory evidence, a positive result needs to be denounced and would normally attract a penalty that emphasises both general and specific deterrence. Because of the respondent’s personal circumstances, this factor has less emphasis in this case than might otherwise be considered appropriate.
[59] We take guidance from the cases of Thomas and Bishop and, while the respondent’s level is considerably less than those in these cases, of concern to this Committee is the fact that the respondent has consumed cannabis over a lengthy period of time by way of self-treatment for his on-going medical issue, and has continued to drive in amateur races despite the risk of his being tested and being found to be over the threshold. The respondent was clearly willing to take this risk.
[60] There is force in the RIU’s submission that Mr R has been blasé in his attitude to cannabis, in that he was well aware he could be drug tested at any time. Mr Lamb was correct when he stated the Rules do not distinguish between the use of cannabis for recreational or medicinal purposes. Our concerns in this regard as to the respondent’s future conduct have been allayed somewhat by the medical evidence that an alternative and lawful form of treatment has been found, which provides him with the necessary relief. And we also note he produced a clear sample when tested on 25 May.
[61] We believe when all matters are placed in the balance that Mr R’s breach of r 512 is comparable in seriousness to the breaches in Thomas and Bishop. He has an excellent record and has admitted the breach at the first opportunity. In addition, we have regard to the many references from well-respected identities in the harness racing industry, all of who have attested to Mr R’s personal life, integrity, and his ability around horses.
[62] In determining the length of suspension, we need to consider the irregularity with which the respondent drives. We are told there are approximately 24 amateur races a season in the South Island. Mr R says to add another 4 for the New Zealand Championship in which he has been competing. We believe a suspension marked by a period of months best denounces the respondent’s conduct, although a rough calculation is that he has 2 drives a month. Of significance, is the fact that the mandatory stand down period on the return of a positive sample has meant that the respondent has no longer been able to participate in the New Zealand Amateur Drivers Championship, a series in which he had previously excelled.
[63] We suspend Mr R’s Advanced Amateur Driver and Trials Horseman’s licence for a period of 5 months. The suspension is backdated to 3 March 2016, which was the date on which the respondent was automatically suspended. The suspension ends on 31 July 2016.
[64] The parties’ submissions canvassed the possibility of a fine coupled with a suspension. Having regard to the respondent’s limited means and the fact that there will be a costs order, we see no need to mark the breach further through the imposition of a fine.
Costs
[65] The RIU made no application for costs other than the testing fee of $187.50. Costs in this amount are awarded to the RIU.
[66] JCA costs, are a tad over $2000. It is usual for a costs award to be in the vicinity of 50 to 60 per cent of actual costs.
[67] Again having regard to the information placed before us as to the respondent’s financial circumstances, we believe costs at the level of 50 per cent are appropriate.
[68] Mr R is ordered to pay costs to the JCA of $1000.
Dated at Dunedin this 9th day of June 2016.
Geoff Hall, Chairman
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