Non Raceday Inquiry – RIU v IJM Brownlee – Decision dated 29 June 2012

hearingid: b76cd4dcc791650d66d8a87342b50541

informantnumber: 67350

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decisiondate: 15/06/2012

hearing_title: Non Raceday Inquiry - RIU v IJM Brownlee - Decision dated 29 June 2012

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

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 MR IVAL JAMES MOORE BROWNLEE -Licensed Public Trainer and Open Horseman

Respondent

Information: 67350

Judicial Committee:  Prof G Hall, Chairman - Mr A Dooley, Member

Appearing: Mr R Carmichael, for the informant, The respondent in person, with the assistance of Mr R Lawson

Date of written decision: 29 June 2012
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DECISION OF JUDICIAL COMMITTEE AS TO PENALTY
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[1] The respondent is a Public Trainer and Open Horseman, licensed under the New Zealand Rules of Harness Racing. He is charged with a breach of r 512(1) in that, being a licensed Open Horseman, he was required under rr 226(2)(d) and 313(6) to undergo a random urine test, and has returned a positive test to the controlled drugs THC acid (cannabis), methamphetamine and amphetamine.

[2] These rules provide:
226(2) Every Racecourse Inspector may and shall have the power to:
(d) to require a horseman or junior horseman or the holder of a Horseman's Licence to permit a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), to be obtained from him by or under the supervision of a registered medical practitioner or by an authorised person at such time and place as the Racecourse Inspector shall nominate.

313(6) Every horseman shall permit a sample of his blood, breath, urine, saliva, or sweat (or more than one thereof) to be obtained from him by or under the supervision of a registered medical practitioner or by an authorised person at the time or place nominated by a Stipendiary Steward or Racecourse Inspector.

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 of his blood, breath, urine, saliva or sweat (or more than one thereof), 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.

[3] The penalty rule is r 1003(1). This states:

1003(1) A person who commits a breach of any Rule … shall be liable to the following penalties:
(a) a fine not exceeding $10,000.00; 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] In the course of a telephone conference held on 12 June 2012 Mr Brownlee confirmed that he understood the charge set out in information 67350 and that he admitted the breach. He requested that the matter be determined “on the papers”. Mr Carmichael indicated that the informant had no objection to this.

[5] Mr Brownlee also stated he was aware that he had the right to be represented by a lawyer but he wished to proceed with the lay assistance of Mr Lawson.

[6] Mr Carmichael stated that he and Mr Lawson had been in regular contact and that they had reached a consensus as to the appropriate penalty.

[7] The Chairman explained that this Committee would not be bound by any agreed position adopted by the parties but this would be a factor that we would consider when determining penalty. The parties acknowledged that they understood this and agreed to a timetable within which written penalty submissions would be placed before this Committee.

[8] We have now received these submissions in a timely fashion.

[9] We are satisfied that the necessary preliminary matters have been properly adhered to, including: the authority to lodge an information; the filing of information number 67350 with the Judicial Control Authority; the service of the information upon Mr Brownlee in accordance with the Rules; and the appointment of this Committee.

[10] The facts:

[11] An agreed summary of facts was placed before this Committee. We highlight the salient features.

[12] Mr Brownlee is aged 40 years. He has held a licence in Harness Racing since he was a teenager.

[13] On 16 March 2012 Mr Brownlee was one of eight horsemen randomly selected for race day testing at Alexandra Park pursuant to r 226(2)(d). An authorised person conducted the drug testing in accordance with cl 6 of the Official Protocol.

[14] All samples from the meeting were sealed and packaged and forwarded by courier to ESR (the authorised testing laboratory for workplace drug testing) at Porirua where they were receipted on 20 March 2012.

[15] On 21 March 2012 ESR reported in writing that the sample identified as being from Mr Brownlee had tested positive to a range of drugs, including THC acid (cannabis), methamphetamine, amphetamine, and pseudoephedrine.

[16] Methamphetamine is a Class A controlled drug, whilst amphetamine and cannabis are Class B and Class C controlled drugs, within the meaning of the Misuse of Drugs Act 1975 and as listed in Schedules 1, 2 and 3.

[17] Mr Carmichael interviewed Mr Brownlee at Pokeno on 22 March 2012. Mr Brownlee readily admitted the use of cannabis but denied the use of methamphetamine. He admitted the use of a number of legitimate medications including Voltaren, Ibuprofen, Contac and Sudafed. He believed that the positive result for methamphetamine could have resulted from the metabolism of pseudoephedrine, the drug found in Sudafed and Contac.

[18] Immediately following the interview, Mr Brownlee’s Horseman’s licence was suspended in accordance with Rule 514(2)(b). A copy of the notice served upon Mr Brownlee in accordance with r 514 was produced. The informant confirmed that Mr Brownlee had not driven in any race or trial since 22 March 2012.

[19] Mr Brownlee was further interviewed at Alexandra Park on 20 April 2012. On that day he was subjected to a further urine test. On 26 April 2012 the analyst reported in writing that this random sample was negative to amphetamines but still positive to THC Acid (cannabis).

[20] As a consequence of Mr Brownlee’s denial of the use of methamphetamine, and the possibility that it resulted from the metabolism of pseudoephedrine from the Sudafed and/or Contac, the question was referred to the analyst for an opinion. On 2 May 2012 Ms Russell, a forensic toxicologist employed by ESR at Porirua responded to the question. In her signed statement she said:

In an email from Rod Carmichael I was asked to comment on whether the use of the four medications could account for the result reported. Some formulations of Sudafed and Contac may contain pseudoephedrine. Use of such medications could account for the presence of pseudoephedrine and/or ephedrine in the urine sample. However, pseudoephedrine does not form methamphetamine in the body.

[21] At Mr Brownlee’s request, and expense, the reserve urine sample from the original test taken on 16 March 2012 was sent by ESR to the Canterbury Health Laboratories for independent analysis.

[22] On 24 May 2012 the analyst’s written report confirmed the presence of amphetamine and methamphetamine in the reserve sample.
Informant’s submissions

[23] On the basis of the tests that had been conducted and upon the expert opinion of the analyst, the informant submitted that Mr Brownlee had, notwithstanding his denials, at some time prior to the original test at Alexandra Park on 16 March 2012 been exposed to methamphetamine and amphetamine. These substances were confirmed in his reserve sample and at a notifiable level.

[24] The informant submitted that the use of drugs seriously impugns the integrity of racing and, more particularly, the safety of horsemen engaged in driving at race meetings and trials. The purpose of the Rules in relation to testing was therefore quite plain.

[25] Harness Racing New Zealand promulgated its drug testing policies in 1998. Since that time there have been limited breaches, and none for the detection of a Class A controlled drug, including methamphetamine. The informant noted that in Thoroughbred Racing a rider testing positive to a Class A substance could usually expect to be disqualified. And we observe that that outcome for a jockey is also the experience of this Committee.

[26] The informant produced Mr Brownlee’s record and statistical data. This indicated that Mr Brownlee has been licensed for about 25 years. He is a graduate of the Harness Horse Cadet scheme and has no previous breach of the drug testing rules. He has undertaken previous tests, which were negative to controlled substances.

[27] Mr Brownlee holds a Public Trainer’s Licence and a Horseman’s Licence. The informant submitted that this Committee was entitled to consider a penalty that would affect only Mr Brownlee’s ability to drive and not his ability to train. Such a penalty would involve suspension of his Horseman’s Licence only.

[28] The informant further submitted that in order to send a clear message to participants, given the nature of the substances involved in these proceedings, a substantial period of suspension of Mr Brownlee’s Horseman’s Licence was required. This period was one year.

[29] The informant also sought costs of $172.21, being the cost of the sample analysis.

Respondent’s submissions:

[30] The respondent concurred with the summary of facts as presented by Mr Carmichael “in its entirety”.

[31] The respondent submitted that he “willingly and co-operatively adhered to the requirements of the urine test procedure on March 16th 2012 feeling under no pressure that there may be a positive response to the testing procedure”.

[32] Mr Brownlee said he was not shocked at the outcome of a positive test to cannabis and admitted its use to Mr Carmichael immediately when confronted with the result. However, Mr Brownlee stated that he had never knowingly taken methamphetamine (or "P", as it is commonly known) and was “shocked and stunned when the outcome of the urine test indicated the presence of methamphetamine”.

[33] Because the respondent considered there was the potential for the positive result to be due to a misreading of the sample caused by the ingestion of pharmaceutical products, the reserve sample was tested at an independent laboratory. The result of that test was also positive. Mr Brownlee has concluded that he had been unwittingly subjected to the spiking of his drink or to some other form of contamination so as to have ingested methamphetamine into his system.

[34] The respondent accepted the informant’s submission that the use of drugs, and methamphetamine in particular, seriously impacts on the integrity of the racing industry and that any participants who were under the influence of drugs or alcohol would seriously compromise the safety of drivers. He agreed that the industry at large was extremely supportive of the HRNZ’s and RIU’s stance on zero tolerance in the industry.

[35] Mr Brownlee accepted that in Harness Racing there was no precedent with regards to the appropriate penalty for methamphetamine related offending. He acknowledged that in Thoroughbred Racing there had been a small number of jockeys who had tested positive to a Class A drug and that the usual penalty was a period of disqualification. However, in the Thoroughbred cases the defendants had held only one licence, that to be able to ride in races or track work. The respondent observed that holders of Trainers Licences only in Harness Racing were not currently subject to alcohol/drug testing.

[36] The respondent concurred with the informant’s submission that only Mr Brownlee’s Horseman’s Licence should be subjected to the penalty. He observed that any disqualification of his Horseman’s Licence would automatically affect his Trainer’s Licence and would render that licence void for the period of disqualification. He further stated that any disqualification would effectively curtail his involvement in the industry and would be likely to force him to relocate.

[37] Mr Brownlee understood that Mr Carmichael had taken guidance from Mr Cameron George, Chief Stipendiary Steward, and that Mr George had concurred that the licences were separate and should be so treated.

[38] Mr Brownlee said he accepted that a substantial penalty had to be imposed and, in so doing, he freely acknowledged what he described as the dilemma between sending a clear message to him and to any others in the industry who may be tempted to tread his path on the one hand, and delivering a fair and equitable penalty for his offending on the other.

[39] The respondent also drew a comparison between positive drug results in humans and in racehorses. He stated that the impact on the integrity and public perception of horse racing was greater when test results evidenced that horses had been drugged in order to improve their performance.

[40] Mr Brownlee reiterated he is not a "P" user and that he “despises the substance”. He admitted to occasional use of cannabis and said that his returning a positive test had been a salient lesson to him. He said he was intelligent and responsible enough to realise this was a very strong warning that if he wished to stay in the harness racing industry, drug use would not be tolerated.

[41] Mr Brownlee stated he was willing to pay any costs incurred by the RIU in the testing and investigation of the matter and was willing and accepting of paying the Judicial Control Authority costs for the hearing and determining of the matter.
Decision as to penalty and costs

[42] Mr Brownlee is to be sentenced consequent upon his admission of a charge of providing a sample of his urine, which has tested positive for methamphetamine, amphetamine and cannabis. There is no evidence before us as to the reason he has produced a positive to the drugs methamphetamine and amphetamine and we refuse to speculate as to this. He has admitted to using cannabis socially.

[43] Mr Brownlee is a 40 year-old man who lives with his partner on his parents’ property at Pokeno. He has no dependents. He is fully employed at that residence as a horse trainer and farm manager. The property is licensed as a Horse Training Facility but also has extensive farmland. The respondent derives a modest income from training/driving and the proceeds from the sale of livestock (cattle). We accept that Mr Brownlee’s health is an ongoing issue for him. Testimonials placed before us attest to his good character.

[44] We give credit for Mr Brownlee’s ready co-operation with the RIU investigators and his immediate admission of the breach upon receipt of the results of the reserve sample. It is clearly his right to have that sample tested and we view his admission as being made at the first reasonable opportunity. We further note he was willing to admit to the use of cannabis from the outset.

[45] We accept that we are not bound by the agreed submissions of the parties as to what they believe is the appropriate penalty for this breach. However, we see no reason to differ from that penalty. The distinction that has been drawn between the respondent’s Trainer’s Licence and Horseman’s Licence, we believe, is a valid one. We see no need to deprive the respondent of his industry related livelihood completely.

[46] There is a clear need to denounce Mr Brownlee’s conduct, to hold him accountable and to deter him and others in the industry from the consumption of illegal substances. One particularly concerning feature of the respondent’s offending is the cocktail of drugs to which he has returned a positive reading. That he has consumed a variety of illegal substances emphasises to us that there is a need to distance Mr Brownlee from the racetrack in the interests of the safety of his fellow participants, both human and animal. We are satisfied that a lengthy suspension of his Horseman’s Licence will serve to underscore to harness racing participants that drug use is unacceptable within the industry.

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penalty:

[47] Mr Brownlee is suspended from holding an Open Horseman’s licence for a period of 12 months. This suspension commences on 22 March 2012, the date on which he was suspended pursuant to r 514(2).

[48] We believe it is appropriate that the respondent makes a contribution to the costs of the informant and the Judicial Control Authority. Costs of $172.21, being the cost of the sample analysis, are awarded in favour of the informant, and $450 to the Judicial Control Authority.

hearing_type: Non-race day

Rules: 512(1)

Informant: Mr TR Carmichael - Racing Integrity Unit

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PersonPresent: Mr R Lawson - Assisting Mr Brownlee

Respondent: Mr IJM Brownlee - Licensed Public Trainer and Open Horseman

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