Non Raceday Inquiry – RIU v K A Burgess 10 May 2012 – Decision dated 11 May 2012
ID: JCA15780
Decision:
NON RACE DAY ENQUIRY
NZTR v KARL ALLEN BURGESS
held at Cambridge Raceway
Thursday 10 May 2012
Judicial Committee: R Seabrook, Chairman - G Tankard, Committee Member
Rule: 656 (3)
Informant: Mr B Oliver – Racing Integrity Unit
Respondent: Mr K A Burgess, Trackwork Rider
Also present: Mr T Pike assisting Mr Burgess
Charge:
On the 23rd day of April 2012 at 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 NZ 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 therefore 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.
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 Drug Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers.”
Mr Brownie acknowledged he had received a copy of the charge and the relevant rules. He told the Committee he understood them and did not wish them to be read. He confirmed to the Committee he admitted the breach of the rule.
Accordingly we find the charge proved.
Summary by Mr B Oliver:
On Monday the 23rd of April 2012, officials from the Racing Integrity Unit conducted routine drug testing at the Cambridge Jockey Club Training Centre in Cambridge.
The defendant, Karl BURGESS, was one of the people randomly selected for testing and was served the appropriate notice at 7.50 am by a Stipendiary Steward. Mr BURGESS provided the required urine sample at 9.45 am. The sample was given a unique number and forwarded to the ESR later that day by an Investigator.
On Tuesday the 24th of April 2012, the Racing Integrity Unit was informed by the ESR that the sample provided by Mr BURGESS had, on analysis, been found to contain the controlled drug Cannabis.
A stand down notice and a copy of the ESR Certificate in accordance with Rule 657(1) (a) were served on him on the 26th of April 2012 as provided in Rule 911(1) (a).
Mr BURGESS said that he began smoking Cannabis when he was 16 years of age and has continued smoking the drug on and off since then. He said that he knew his sample would be positive because he had smoked a Cannabis joint at the Hamilton V8’s the day before. He said that he was a random Cannabis user, probably using the drug once a week.
Throughout the enquiry Mr BURGESS was co-operative. He is currently a full time track work rider for a Cambridge stable. He derives his income solely from the racing industry and the service of the stand down notice effectively finished his income.
His employer is prepared to hold his job open for him if he gives up the Cannabis. BURGESS indicated to the Investigator that he wants to remain in the industry and that he intended giving up Cannabis effective immediately.
He lives in rental accommodation in Cambridge by himself. He has no assets or savings and has to pay child support for a daughter.
Submissions by Mr K A Burgess:
Mr BURGESS told the Committee he accepted full responsibility for his actions but was determined to cease the use of Cannabis so he could retain his employment in the racing industry. He said he had not touched Cannabis since the day of the testing but admitted smoking a joint after meeting with friends during the V8 series, the day before the tests were conducted.
In support of Mr BURGESS, Mr T Pike said he had employed Mr BURGESS for the last six months and he had proved to be a model worker. He added he had very good work ethics, was reliable and had never come to work under the influence of drugs. He said he was willing to retain Mr BURGESS as an employee.
Submissions on Penalty by Mr B Oliver:
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.
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.
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.
On this occasion Mr BURGESS has presented himself at the Cambridge Jockey Club Training Centre to ride track work while the drug Cannabis was within his body. Cannabis is a class C drug and the amount within his system was in the mid range. Mr BURGESS does not currently have the ability to pay a fine.
It is submitted that a period of three months suspension and the cost of the analysis of $172.21 (to the RIU) should be imposed.
Submissions on Penalty by Mr K Burgess:
Mr BURGESS said the impact of suspension would affect his income greatly and asked for leniency.
Mr Pike explained to the Committee that there was a chronic shortage of track riders at the present time and submitted that a lesser suspension and a fine would be appreciated.
Decision:
The Committee has carefully considered all the submissions and evidence as presented. Mitigating factors include Mr BURGESS’ admission of the breach and his full cooperation with the investigators. The committee is satisfied that he is truly remorseful and is aware that this is his first charge under this rule. However, the Committee explained to Mr BURGESS there is a need to maintain integrity and public confidence in the racing industry and the penalty must reflect the seriousness of the offence. While the committee has sympathy with Mr Pike’s position as an employer, Mr BURGESS’ situation is no different to others facing the same charge.
As Mr BURGESS’ license was withdrawn on 26 April 2012 we formally reinstate his license today, 10 May 2012.
Penalty:
Accordingly after taking all the above into account we find the appropriate penalty to be one of a two month suspension which is to start as from today 10 May 2012 and conclude on 10 July 2012.
In addition we order payment of $172.21 being the cost of analysis and $200 to the Judicial Control Authority.
R M Seabrook G Tankard
Chairman Committee Member
11 May 2012
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 06/05/2012
Publish Date: 06/05/2012
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: cfa00b4e635d97b9100e1a133b8fda6f
informantnumber: A2207
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plea:
penaltyrequired:
decisiondate: 06/05/2012
hearing_title: Non Raceday Inquiry - RIU v K A Burgess 10 May 2012 - Decision dated 11 May 2012
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
NON RACE DAY ENQUIRY
NZTR v KARL ALLEN BURGESS
held at Cambridge Raceway
Thursday 10 May 2012
Judicial Committee: R Seabrook, Chairman - G Tankard, Committee Member
Rule: 656 (3)
Informant: Mr B Oliver – Racing Integrity Unit
Respondent: Mr K A Burgess, Trackwork Rider
Also present: Mr T Pike assisting Mr Burgess
Charge:
On the 23rd day of April 2012 at 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 NZ 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 therefore 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.
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 Drug Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers.”
Mr Brownie acknowledged he had received a copy of the charge and the relevant rules. He told the Committee he understood them and did not wish them to be read. He confirmed to the Committee he admitted the breach of the rule.
Accordingly we find the charge proved.
Summary by Mr B Oliver:
On Monday the 23rd of April 2012, officials from the Racing Integrity Unit conducted routine drug testing at the Cambridge Jockey Club Training Centre in Cambridge.
The defendant, Karl BURGESS, was one of the people randomly selected for testing and was served the appropriate notice at 7.50 am by a Stipendiary Steward. Mr BURGESS provided the required urine sample at 9.45 am. The sample was given a unique number and forwarded to the ESR later that day by an Investigator.
On Tuesday the 24th of April 2012, the Racing Integrity Unit was informed by the ESR that the sample provided by Mr BURGESS had, on analysis, been found to contain the controlled drug Cannabis.
A stand down notice and a copy of the ESR Certificate in accordance with Rule 657(1) (a) were served on him on the 26th of April 2012 as provided in Rule 911(1) (a).
Mr BURGESS said that he began smoking Cannabis when he was 16 years of age and has continued smoking the drug on and off since then. He said that he knew his sample would be positive because he had smoked a Cannabis joint at the Hamilton V8’s the day before. He said that he was a random Cannabis user, probably using the drug once a week.
Throughout the enquiry Mr BURGESS was co-operative. He is currently a full time track work rider for a Cambridge stable. He derives his income solely from the racing industry and the service of the stand down notice effectively finished his income.
His employer is prepared to hold his job open for him if he gives up the Cannabis. BURGESS indicated to the Investigator that he wants to remain in the industry and that he intended giving up Cannabis effective immediately.
He lives in rental accommodation in Cambridge by himself. He has no assets or savings and has to pay child support for a daughter.
Submissions by Mr K A Burgess:
Mr BURGESS told the Committee he accepted full responsibility for his actions but was determined to cease the use of Cannabis so he could retain his employment in the racing industry. He said he had not touched Cannabis since the day of the testing but admitted smoking a joint after meeting with friends during the V8 series, the day before the tests were conducted.
In support of Mr BURGESS, Mr T Pike said he had employed Mr BURGESS for the last six months and he had proved to be a model worker. He added he had very good work ethics, was reliable and had never come to work under the influence of drugs. He said he was willing to retain Mr BURGESS as an employee.
Submissions on Penalty by Mr B Oliver:
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.
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.
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.
On this occasion Mr BURGESS has presented himself at the Cambridge Jockey Club Training Centre to ride track work while the drug Cannabis was within his body. Cannabis is a class C drug and the amount within his system was in the mid range. Mr BURGESS does not currently have the ability to pay a fine.
It is submitted that a period of three months suspension and the cost of the analysis of $172.21 (to the RIU) should be imposed.
Submissions on Penalty by Mr K Burgess:
Mr BURGESS said the impact of suspension would affect his income greatly and asked for leniency.
Mr Pike explained to the Committee that there was a chronic shortage of track riders at the present time and submitted that a lesser suspension and a fine would be appreciated.
Decision:
The Committee has carefully considered all the submissions and evidence as presented. Mitigating factors include Mr BURGESS’ admission of the breach and his full cooperation with the investigators. The committee is satisfied that he is truly remorseful and is aware that this is his first charge under this rule. However, the Committee explained to Mr BURGESS there is a need to maintain integrity and public confidence in the racing industry and the penalty must reflect the seriousness of the offence. While the committee has sympathy with Mr Pike’s position as an employer, Mr BURGESS’ situation is no different to others facing the same charge.
As Mr BURGESS’ license was withdrawn on 26 April 2012 we formally reinstate his license today, 10 May 2012.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
Accordingly after taking all the above into account we find the appropriate penalty to be one of a two month suspension which is to start as from today 10 May 2012 and conclude on 10 July 2012.
In addition we order payment of $172.21 being the cost of analysis and $200 to the Judicial Control Authority.
R M Seabrook G Tankard
Chairman Committee Member
11 May 2012
hearing_type: Non-race day
Rules: 656(3)
Informant: Mr B Oliver - RIU Assistant Racecourse Inspector
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Otherperson:
PersonPresent: Mr T Pike - Assisting Mr Burgess
Respondent: Mr K A Burgess - Trackwork Rider
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