Non Raceday Inquiry RIU v GJ Thomas – Decision dated 17 July 2014

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hearing_title: Non Raceday Inquiry RIU v GJ Thomas - Decision dated 17 July 2014

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BEFORE 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

Informant

AND GRAEME JAMES THOMAS
Open Horseman
Respondent

Information: A1158

Judicial Committee: Prof G Hall, Chairman - Mr N Skelt, Member

Appearing: Mr B Kitto, for the informant - Ms M Thomas for the respondent
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DECISION OF JUDICIAL COMMITTEE
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[1] Mr Graeme Thomas (jnr) is aged 37 and is the holder of an Open Horseman’s licence, which was issued under the New Zealand Rules of Harness Racing. He has been licensed since 1993/1994 (trials licence) and has held an Open Horseman’s licence since 2001/2002.

[2] Mr Thomas appears before this Judicial Committee on a charge of having been required under rr 212(1)(g) and 226(2)(d) to supply a sample of his urine at the Invercargill racecourse on 17 May 2014, he supplied a sample of urine, which was found upon analysis to contain the controlled substance THC acid of 220ng/ml, (cannabis), as defined in the Misuse of Drugs Act 1975. He is alleged to have 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 upon him pursuant to r 1003(1)(a), (b) and (c).

[3] At a telephone conference held on 1 July Ms Thomas confirmed that she acted for the respondent and that he admitted the breach. It was agreed that the matter could be heard “on the papers”.

[4] Pursuant to r 1111(1)(d) we find the breach proved.

[5] Rules 512(1) and 1003(1) read as follows:
512(1) 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 1975 or other illicit substance or diuretic and/or its metabolites, artefacts or isomers.

1003(1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 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.

Facts
[6] Mr Kitto has produced written permission to file the information in accordance with r 1103(4)(c) from the Operations Manager of the RIU, Mr M Godber, alleging a breach of r 512(1). This letter is dated 4 June 2014.

[7] Mr Kitto stated that on Saturday 17 May 2014 workplace random driver drug testing was conducted at the Invercargill Harness Racing Club’s meeting held at Ascot Park racecourse. The drug testing was conducted in the specialist workplace drug testing van by the New Zealand Drug Detection Agency and the respondent was one of 10 drivers tested that day.

[8] Mr Thomas was served with a Harness Racing Drug Testing Notification form at 11.02 am. Mr Thomas called at the testing van at 2.49 pm and voided urine at 2.51 pm. The screening test was non-negative for THC and a urine sample was forwarded to the ESR for analysis.

[9] On 21 May 2014 the ESR reported that the sample was positive for THC acid level 220 ng/ml.

[10] The summary of facts contains the statement of Ms Michelle Birch, Senior Scientist, Team Leader for Work Place Testing ESR that “studies have proven that passive inhalation would not cause urine levels greater than 15 ng/ml. While we cannot state how much has been used, a level of 220 ng/ml is indicative of either a chronic user, or of recent use of cannabis.”

[11] In accordance with r 514(2)(a) and (b), Mr Thomas was issued with a written notice on 23 May 2014 automatically suspending his Open Horseman’s licence.

[12] Mr Kitto spoke to Mr Thomas after Mr Thomas had completed the urine test at the race meeting on 17 May 2014. The respondent stated that 3 nights before the race meeting he was dealing with some upsetting matters of a personal nature and he had been drinking heavily at a hotel. He had been taken by the hotel’s courtesy bus to a party where about 20 people were smoking “stuff”. He was very hungry and ate some homemade biscuits. He had consumed a significant amount of alcohol and had little recollection of the events of that night.

[13] Mr Kitto has stated that when interviewed, Mr Thomas was deeply concerned by the position he found himself to be in. He told Mr Kitto that he was not a drinker and he denied smoking cannabis. Mr Kitto informed this Committee that there was “no intelligence or information to suggest otherwise”. Mr Kitto concluded that Mr Thomas had “put himself in an environment that would be foreign to him which had resulted in the positive drug test”.

[14] Mr Kitto further informed the Committee that Mr Thomas had 3 race day drives on the day in question. The stipendiary steward, who chaired the race meeting, had reviewed the tapes and concluded he could find nothing untoward with Mr Thomas’ drives.

[15] Mr Thomas agreed with the summary of facts.

Submissions as to penalty
[16] Mr Kitto observed that horsemen and women as a condition of being granted a licence agreed to the work place drug testing requirements. He emphasised the purpose of the drug testing rules was to enable random drug testing to be carried out at any race meeting, at any time, with no prior notice of an intention to do so. The use of drugs seriously impugned the integrity of racing, and in particular, the safety of horsemen and women, and horses being driven at race meetings.

[17] Mr Kitto produced the respondent’s record, which was clear under this Rule.

[18] Mr Kitto submitted that a penalty of 6 months’ suspension of the respondent’s Open Horseman’s licence was appropriate. In support of this submission he produced a schedule of recent cases in both codes.

[19] Mr Kitto accepted that Mr Thomas’ financial position was not strong. The RIU did not seek a financial penalty.

[20] Ms Thomas’ submission as to penalty emphasised that the summary of facts recorded that the cannabis found in the respondent’s system was due to a mistaken ingestion.

[21] Ms Thomas highlighted the following mitigating factors: the very low reading; the absence of any evidence of driving impairment; the positive statements as to Mr Thomas in the informant’s submissions; Mr Thomas’s good driving record; and his admission of the breach.

[22] Ms Thomas also emphasised the impact the proof of this charge would have upon the respondent’s reputation and that, as a consequence, a specific deterrent was not required.

[23] Mr Graeme Thomas snr, Licensed Trainer, provided an affidavit describing the impact the suspension of the respondent’s driving licence had had upon the stable. The respondent is his stable driver and the intention had been to race CONNELL CERNACH at Winton and then at the Forbury Park meetings in late May and June. IBEDMAN was also to be raced over winter. Mr Thomas thus stated that had the respondent not been suspended he would have been driving over winter.

Decision
[24] 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. We accept Mr Thomas’ assurance that this was a one-off incident arising out of his attending a party where there were a number of people with whom he did not usually associate. We note that Mr Thomas has no clear recollection of events of that evening and understandably it is merely surmise on his part as to how he came to return a positive test to THC. We note he has no previous beaches of this Rule and we accept Ms Thomas’ submission that specific deterrence need not be given great weight when we impose penalty.

[25] We accept Mr Kitto’s submission that the use of drugs seriously impugns the integrity of racing, and is a health and safety issue for drivers and horses alike. We do not accept Ms Thomas’ submission that the level is “very low”; it is well above the threshold, which is 15 ng/ml. We are a little surprised but relieved to learn in light of the respondent being unfamiliar with the effects of cannabis that there were no issues with respect to the manner in which he drove on the raceday in question. This the absence of an aggravating factor.

[26] Mr Thomas has admitted the breach at the earliest opportunity. He was co-operative with the stewards’ inquiries at all times. He has a very good driving record and, as noted, no previous breach of this Rule. These are significant mitigating factors.

[27] The respondent is of good character and is a member of a well-respected southland family that has enjoyed a life-long involvement in the breeding, training and racing of standardbred horses. This is a significant “fall from grace” by Mr Thomas.

[28] We have found the schedule provided by Mr Kitto of recent decisions under r 512(1) with respect to cannabis to be very helpful. The harness cases demonstrate a suspension of around 6 months, together with a fine of up to $500, not to be uncommon for a first breach of this Rule. In thoroughbred racing, jockeys tend to be disqualified, while track workers often receive a short period of suspension. We are informed that the level in the apparently anomalous decision in RIU v M (August 2011), where a penalty of only 2 months’ suspension was imposed was only marginally above the 15 ng/ml level.

[29] By way of comparison with M, Mr Thomas’ level is high. As noted, we accept his statement that this was the result of recent partying where he unwittingly ingested cannabis.

[30] We have had regard to Mr Thomas’ (snr) statement that the respondent would have been driving stable runners at winter meetings. We consider the imposition a suspension of 6 months, which is in line with a number of the decisions identified by Mr Kitto, to be appropriate. We believe Mr Thomas’ good standing in the industry over a 20-year period permits us to temper this otherwise appropriate penalty just a little. Pursuant to r 514(2), we impose a suspension of the respondent’s Open Horseman’s licence from 23 May last, the day on which his Open Horseman’s licence was suspended pursuant to r 514(2), up to and including Sunday 2 November 2014. This is a little over 5 months and enables the respondent to drive in early and mid November when there are a number of harness racing meetings in the south.

[31] We have regard to Mr Thomas’ limited financial resources and the fact he has 2 dependent children, and refrain from the imposition of a financial penalty.

[32] The RIU did not seek costs but asked that the respondent meet the expense of the ESR testing fee, which is $172.20. We so order.

There is no award of costs to the JCA.
 

Dated this 17th day of July 2014.

Geoff Hall, Chairman

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