Non Raceday Inquiry RIU v A J Couchman – Decision dated 24 July 2015
ID: JCA17736
Decision:
Non Race Day Decision: RIU v A J COUCHMAN
BEFORE A JUDICIAL COMMITTEE
HELD AT AUCKLAND
IN THE MATTER of New Zealand Thoroughbred Rules of Racing Information A7119
BETWEEN Mr A Cruickshank (Investigator for the Racing Integrity Unit)
Informant
AND
Mr A Couchman (Unlicensed Track Rider)
Defendant
JUDICIAL COMMITTEE: Mr G Jones (Chair) and Mr B Scott (Committee Member)
VENUE: Alexandra Park, Auckland
PRESENT: Nil persons present
DATE OF HEARING: 24 July 2015
DATE OF ORAL DECISION: 24 July 2015
DATE OF REASONS FOR DECISION: 24 July 2015
DECISION OF THE JUDICIAL COMMITTEE
The Charge
[1] A charge was brought against Unlicensed Track Rider, Mr A J Couchman (the “Defendant”) by Mr A Cruickshank (the “Informant”) alleging that:
On the 15th day of May 2015, at the Byerley Park Training Centre Auckland, having been required by an Investigator to supply a sample of urine in accordance with Rule 656 (3) of the New Zealand Rules of Racing, had urine which was found, upon analysis, to contain the controlled drugs Methamphetamine and Amphetamine as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656 (3) and is therefore liable to the penalty or penalties which may be imposed pursuant to Rule 803 of the said Rules.
[2] New Zealand Thoroughbred (NZTR) Rules (“the Rules”) relevant to this hearing are Rules 656 (3) and 803 2(C):
Rule 656 (3) provides that:
A Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, who, having been required by a Stipendiary Steward or Investigator to supply a sample in accordance with this Rule must not have a sample which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers.
Rule 803 (2) (C) provides that:
Where a horse or its Rider commits or is deemed to have committed a breach of these Rules or of any of them and a penalty is not provided elsewhere in these Rules for that breach:
(C) a breach related to drugs, alcohol or a Prohibited Substance, in which event such person shall be liable to a fine not exceeding $50,000 or the amount of the fee and share of stakes payable to the Rider or Trainer concerned for the relevant Race (whichever is the greater amount) and to a period of disqualification not exceeding five years.
[3] By way of memorandum dated 21 May 2015, the General Manager: RIU authorised the filing of the charge against Mr Couchman pursuant to Rule 1103 (4) (c).
[4] Information number A7119 sets out the particulars of the charge. It was served on the Defendant, Mr Couchman by the Informant, Mr Cruickshank on 22 May 2015.
[5] The Defendant has elected not to appear at this hearing. But he has lodged written submissions for the Committee to consider in determination of penalty.
Rule 914 provides that:
A defendant who does not appear at the hearing of the information may admit the breach of these Rules alleged in that information by giving written notice to the Judicial Committee that he does so and in such event the Judicial Committee shall have the same power to deal with him as if he had appeared before it and admitted that breach.
[6] The Information has been is endorsed “I do admit the breach of the rule” and is signed by the Defendant. Accordingly, the Committee is satisfied that the Information has been appropriately served on the Defendant and that he admits the charge.
[7] In terms of Rule 914 requirements which enable a defendant who does not appear at the hearing to admit the breach by giving written notice to the Judicial Committee we believe Mr Coachman’s notation on the Information indicating his admission, as well as his written penalty submissions are sufficient to satisfy this requirement.
[8] Prior to the hearing various relevant documents were produced by the Informant and disclosed to the Defendant. These were also made available to the Committee.
[9] Given that Mr Couchman did not wish to appear at the hearing personally, and all relevant documents have been prepared and disclosed, the Committee determined this matter can be properly dealt ‘on the papers’ and by agreement with the RIU there is no requirement for the Informant to appear at the hearing. For the record the Committee has read and taken into account the following documents:
o Information number A7119
o Summary of facts
o Informant penalty submissions
o Defendant penalty submissions
o General Manager RIU memorandum authorising the prosecution
o Charge sheet and penalty provisions
o NZDDA and ESR consent and test forms relevant to Mr Couchman
[10] Because Mr Couchman admitted the breach of the Rule, the charge is proved.
Summary of Facts
Mr Cruickshank presented a summary of facts. The relevant points are outlined as follows:
[11] On Wednesday 13th May 2015, officials from the Racing Integrity Unit conducted routine drug testing at the Byerley Park Training Centre in Auckland.
[12] Mr Couchman was one of the people randomly selected for testing and was served the appropriate notice at 7.05am by a Stipendiary Steward.
[13] Mr Couchman provided the required urine sample at 7.31am. The sample was given unique number U220209 and forwarded to the ESR later that day by a Drug Detection Agency (TDDA) authorised agent of the Racing Integrity Unit.
[14] On Monday 18th May 2015, the Racing Integrity Unit was advised, in writing, that the sample provided by Mr Couchman had, on analysis, been found to contain the controlled drugs Methamphetamine and Amphetamine.
[15] A Stand down Notice and a copy of the ESR Certificate in accordance with Rule 657(1) (a) were served on Mr Couchman on the 19th day of May 2015 as provided in Rule 911(1) (b).
[16] When spoken to Mr Couchman stated that he had smoked Methamphetamine the previous Friday or Saturday and has been using the substance for about 5 years when he is partying.
[17] Mr Couchman is currently an unlicensed freelance track rider at Byerley Park. He derives his income solely from the racing industry. At the time of the breach he was in a de-facto relationship, and has a young child which he supports.
Submissions by Mr Couchman
[18] The Committee has noted comments in Mr Couchman’s written penalty submissions in which he accepts the test results and freely acknowledges his use of methamphetamine.
Submissions as to Penalty
In relation to penalty Mr Cruickshank provided written submissions. The salient points are that:
[19] Mr Couchman is an unlicensed freelance Track Rider. He has been involved in the racing industry for all of his adult life. He is 24 years of age.
[20] He has admitted a breach of the rules in relation to the positive drug test undertaken on 13th May 2015 at the Byerley Park Training Centre in Auckland.
[21] 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 drugs.
[22] 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.
[23] 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.
[24] On this occasion Mr Couchman has presented himself at the Byerley Park Training Centre to ride track work while the drugs Methamphetamine and Amphetamine were within his body.
[25] Methamphetamine is a Class A controlled drug and Amphetamine is a Class B controlled drug. Mr Couchman does not currently have the ability to pay a fine.
[26] It is submitted that a period of 9 months disqualification/suspension and the cost of the analysis of $187.50 (to the RIU) should be imposed.
[27] In support of this Mr Cruickshank referred to the decision of RIU v Isherwood (4.11.13). In that case the rider held a Class A Rider Licence and tested positive to Methamphetamine and Amphetamine whilst riding track work. She was disqualified for a period of 12 months and ordered to pay the cost of the testing analysis.
In relation to penalty Mr Couchman provided written submissions. The salient points are that:
[28] Mr Couchman accepts responsibility for the breach.
[29] Mr Couchman requests that any proposed penalty should take account of his personal circumstances and that it commences from 18 May 2015 which is the date that he was served with his stand down notice.
[30] Mr Couchman submitted that he has worked in the racing industry doing various tasks since he left school. He said he has worked for trainers in Cambridge, Christchurch, Pukekohe and Byerley Park. He submitted that although he generally operates as a self-employed freelance rider, there have been periods when he has been employed by one trainer.
[31] Mr Couchman submitted that he supports his 1 year old daughter, and is no longer in a relationship with her mother.
[32] Mr Couchman submitted that he started using methamphetamine when he was 19 years old as a party drug and as an aid to manage his weight. He said he is no longer using the drug and is now living in a stable environment well apart from his former associates. He said that he now appreciates the danger that he placed himself, other track riders and horses in when riding having used methamphetamine.
[33] Mr Couchman submitted that he is at a stage in life where he seeks to make a drastic change in the way he lives his life. He said that he knows no other life other than racing and has no other work related skills. He said he wants to remain drug free and is willing to undertake a rehabilitation programme.
[34] Mr Couchman has noted the RIU are seeking a 9 month penalty which he understands is consistent with the penalty imposed in the rider L Isherwood for a similar breach. In that regard he asked the Committee to take into account his individual circumstances.
Reasons for Penalty
[35] The Committee has carefully considered the facts and submissions lodged by the Informant and Defendant and to the extent they exist we have weighed up the factors that we have determined to be mitigating and aggravating. We have also had due regard to the circumstances of the breach as well as Mr Couchman’s individual and personal circumstances.
[36] We have been advised Mr Couchman is a 24 year old man who has been involved in the racing industry all his adult working life and he currently supports child from income derived as an unlicensed Trackwork Rider.
[37] In his written submissions Mr Couchman has accepted responsibility for his offending and has taken some positive steps to turn his life around. He has shifted accommodation into a more settled environment with his grandparents and advises that he is no longer using drugs. He also indicates a willingness to seek rehabilitative help for his drug dependency. For that we give him credit as well as his admission of the breach.
[38] The Informant has submitted that historical penalties for breaches of the industry drug laws show some divergence and the type of drug, the situation and the amount of the drug in the system add to this divergence. The Informant referred the Committee to the decision of RIU v Isherwood (2013) the circumstances of which are similar to many aspects of this charge. Taking those factors into account the Informant submitted a penalty of 9 months would be appropriate for this breach.
[39] The Committee is mindful of the fact that breaches of similar culpability should, as a general rule attract broadly similar penalties and with this in mind the Committee has taken guidance from a limited number of comparable decisions and penalties that have resulted from breaches of this Rule. In particular we have noted the various similarities and points of difference. In our view the most relevant decisions for our consideration are those that specifically relate to methamphetamine or amphetamine detection – these include:
• RIU v Waddell (2010) – 14 months disqualification
• RIU v Ihaka (2010) – 18 months disqualification
• RIU v Isherwood (2013) – 12 months disqualification
[40] The Committee noted that the Rule and penalty concerning substance abuse were amended in late 2009. The main changes were an increase in penalty from $20,000 fine/1 year to the current $50,000 fine/5 year (Rule 803(2) (C) refers).
[41] Despite the penalty uplift the Committee has noted that penalties for breaches prior to the change where methamphetamine was involved attracted disqualifications in the 5 to 8 month range, (for example NZTR v Lloyd and RIU v Carmine).
[42] The cases referred to by the Committee all involved Licensed Riders whereas Mr Couchman is an unlicensed Trackwork Rider. Although Mr Couchman is unlicensed he is still a ‘rider’ in terms of the Rules which define a ‘rider’ as follows:
a person authorised by these Rules, whether as the holder of a Rider’s Licence or otherwise howsoever to ride a horse in a race, and for the purposes of the drug and alcohol testing provisions in these Rules and Rule 610 includes the holder of a Class A miscellaneous licence (except where such a Licence contains a condition prohibiting the Licenceholder from riding horses), a Class B miscellaneous licence or a Class D miscellaneous licence (except where such a Licence contains a condition prohibiting the Licenceholder from riding horses) and any other person who rides or presents himself to ride a horse in trackwork and/or trials (including jump-outs and/or tests for certification purposes) and/or at any Training Facility or any Trainer’s Premises. [Amended 1 December 2013]
[43] The Committee believes that any rider who uses and is potentially affected by prohibited substances, particularly the Class A Drug methamphetamine presents as a danger to not only him or herself, but also other participants and horses.
[44] Mr Couchman, on his own admission, has been using the substance for about 5 years. Therefore the use which led to this detection was clearly not the result of ‘one off’ experimentation.
[45] We have noted the Informants submission that this breach could be dealt with by way of 9 month disqualification/suspension. Consideration of suspension is not within our remit. Rule 803(2) (C) specifically refers to disqualification as a sentencing option and makes no reference to suspension.
[46] Further, as an unlicensed rider, the Committee cannot impose a suspension as part of any proposed penalty as he does not hold a licence capable of being suspended.
[47] The Committee is firmly of the view that there is a strong need to censure Mr Couchman’s conduct and send a clear message to other industry participants that there is no place for illegal substances within the industry, particularly classified drugs such as methamphetamine and amphetamines. Accordingly, we are satisfied that disqualification is an appropriate penalty.
[48] There are no compelling factors that we consider would necessarily mitigate any proposed penalty, other than Mr Couchmans admission of the breach and his desire to seek rehabilitation. But we appreciate the impact that any disqualification may have on Mr Couchman given that riding trackwork is currently his primary source of income.
[49] We have benchmarked our penalty decision making around the cases previously referred to, namely RIU v Isherwood, RIU v Ihaka and RIU v Waddell to establish a suitable starting point of 13 months disqualification.
[50] Accordingly having made adjustments for Mr Couchman’s admission and other relevant factors we impose a 12 months period of disqualification. Mr Couchman requested the Committee consider backdating any proposed disqualification to the date in which he was stood down (18 May 2015). We are unable to accommodate this request on the basis that Rule 1101 (1) does not allow for this to occur. For the sake of clarity Rules 1101 and 1104 set out the implications of a disqualification as follows:
1101 (1) Each disqualification imposed under these Rules will take effect immediately, unless the Tribunal imposing the disqualification specifies a later date on which the disqualification will take effect.
(2) For the avoidance of doubt, from the date such disqualification takes effect until such time as a person’s and/or a horse’s name appears in the List of Disqualifications that person and/or horse shall be subject to the same disabilities affecting persons and horses whose names then currently appear in the List of Disqualifications.
1104 (1) A person who is disqualified in accordance with this Part XI, or whose name appears in the list of disqualifications of Another Racing Authority shall not during the period of that disqualification:
(a) enter or run any horse for any Race, either in his own name or in that of any other person and every entry theretofore made by him or of a horse in which he has any interest for a Race to be run shall be void as from the date of disqualification;
(b) train any horse or ride any horse in a Race or be employed in any capacity in connection with the training or racing of horses; and/or
(c) enter or go upon any Racecourse or any Training Facility or other place owned or controlled by any Club or by any consortium or other entity of which a Club is a member or in which it is a participant.
(3) A person who contravenes this Rule shall, in addition to any other penalty which may be imposed under any of these Rules, be disqualified for an additional period of not less than six months to commence at the end of the period of the current disqualification. For every second or subsequent breach he shall, in addition to any other such penalty, be disqualified for a period of not less than 12 months to commence at the expiry of the immediately previous period of disqualification.
Penalty and Costs
[51] Having carefully considered all of the material that has been placed before us we impose the following penalties and make the following orders:
[a] That Mr Couchman is disqualified for 12 months commencing from the 24th July 2015 which is the date of this decision.
[b] That Mr Couchman pays the cost of analysis - $187.50, payable to the RIU.
[c] That although this matter was heard on a raceday it was conducted in the nature of a non-race hearing, on that basis some JCA costs have been incurred. However, on this occasion the JCA have not sought costs.
G R Jones B Scott
Chair Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 27/07/2015
Publish Date: 27/07/2015
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: e6a74ca59d526163b95f4726df0a006b
informantnumber:
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hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 27/07/2015
hearing_title: Non Raceday Inquiry RIU v A J Couchman - Decision dated 24 July 2015
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
Non Race Day Decision: RIU v A J COUCHMAN
BEFORE A JUDICIAL COMMITTEE
HELD AT AUCKLAND
IN THE MATTER of New Zealand Thoroughbred Rules of Racing Information A7119
BETWEEN Mr A Cruickshank (Investigator for the Racing Integrity Unit)
Informant
AND
Mr A Couchman (Unlicensed Track Rider)
Defendant
JUDICIAL COMMITTEE: Mr G Jones (Chair) and Mr B Scott (Committee Member)
VENUE: Alexandra Park, Auckland
PRESENT: Nil persons present
DATE OF HEARING: 24 July 2015
DATE OF ORAL DECISION: 24 July 2015
DATE OF REASONS FOR DECISION: 24 July 2015
DECISION OF THE JUDICIAL COMMITTEE
The Charge
[1] A charge was brought against Unlicensed Track Rider, Mr A J Couchman (the “Defendant”) by Mr A Cruickshank (the “Informant”) alleging that:
On the 15th day of May 2015, at the Byerley Park Training Centre Auckland, having been required by an Investigator to supply a sample of urine in accordance with Rule 656 (3) of the New Zealand Rules of Racing, had urine which was found, upon analysis, to contain the controlled drugs Methamphetamine and Amphetamine as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656 (3) and is therefore liable to the penalty or penalties which may be imposed pursuant to Rule 803 of the said Rules.
[2] New Zealand Thoroughbred (NZTR) Rules (“the Rules”) relevant to this hearing are Rules 656 (3) and 803 2(C):
Rule 656 (3) provides that:
A Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, who, having been required by a Stipendiary Steward or Investigator to supply a sample in accordance with this Rule must not have a sample which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers.
Rule 803 (2) (C) provides that:
Where a horse or its Rider commits or is deemed to have committed a breach of these Rules or of any of them and a penalty is not provided elsewhere in these Rules for that breach:
(C) a breach related to drugs, alcohol or a Prohibited Substance, in which event such person shall be liable to a fine not exceeding $50,000 or the amount of the fee and share of stakes payable to the Rider or Trainer concerned for the relevant Race (whichever is the greater amount) and to a period of disqualification not exceeding five years.
[3] By way of memorandum dated 21 May 2015, the General Manager: RIU authorised the filing of the charge against Mr Couchman pursuant to Rule 1103 (4) (c).
[4] Information number A7119 sets out the particulars of the charge. It was served on the Defendant, Mr Couchman by the Informant, Mr Cruickshank on 22 May 2015.
[5] The Defendant has elected not to appear at this hearing. But he has lodged written submissions for the Committee to consider in determination of penalty.
Rule 914 provides that:
A defendant who does not appear at the hearing of the information may admit the breach of these Rules alleged in that information by giving written notice to the Judicial Committee that he does so and in such event the Judicial Committee shall have the same power to deal with him as if he had appeared before it and admitted that breach.
[6] The Information has been is endorsed “I do admit the breach of the rule” and is signed by the Defendant. Accordingly, the Committee is satisfied that the Information has been appropriately served on the Defendant and that he admits the charge.
[7] In terms of Rule 914 requirements which enable a defendant who does not appear at the hearing to admit the breach by giving written notice to the Judicial Committee we believe Mr Coachman’s notation on the Information indicating his admission, as well as his written penalty submissions are sufficient to satisfy this requirement.
[8] Prior to the hearing various relevant documents were produced by the Informant and disclosed to the Defendant. These were also made available to the Committee.
[9] Given that Mr Couchman did not wish to appear at the hearing personally, and all relevant documents have been prepared and disclosed, the Committee determined this matter can be properly dealt ‘on the papers’ and by agreement with the RIU there is no requirement for the Informant to appear at the hearing. For the record the Committee has read and taken into account the following documents:
o Information number A7119
o Summary of facts
o Informant penalty submissions
o Defendant penalty submissions
o General Manager RIU memorandum authorising the prosecution
o Charge sheet and penalty provisions
o NZDDA and ESR consent and test forms relevant to Mr Couchman
[10] Because Mr Couchman admitted the breach of the Rule, the charge is proved.
Summary of Facts
Mr Cruickshank presented a summary of facts. The relevant points are outlined as follows:
[11] On Wednesday 13th May 2015, officials from the Racing Integrity Unit conducted routine drug testing at the Byerley Park Training Centre in Auckland.
[12] Mr Couchman was one of the people randomly selected for testing and was served the appropriate notice at 7.05am by a Stipendiary Steward.
[13] Mr Couchman provided the required urine sample at 7.31am. The sample was given unique number U220209 and forwarded to the ESR later that day by a Drug Detection Agency (TDDA) authorised agent of the Racing Integrity Unit.
[14] On Monday 18th May 2015, the Racing Integrity Unit was advised, in writing, that the sample provided by Mr Couchman had, on analysis, been found to contain the controlled drugs Methamphetamine and Amphetamine.
[15] A Stand down Notice and a copy of the ESR Certificate in accordance with Rule 657(1) (a) were served on Mr Couchman on the 19th day of May 2015 as provided in Rule 911(1) (b).
[16] When spoken to Mr Couchman stated that he had smoked Methamphetamine the previous Friday or Saturday and has been using the substance for about 5 years when he is partying.
[17] Mr Couchman is currently an unlicensed freelance track rider at Byerley Park. He derives his income solely from the racing industry. At the time of the breach he was in a de-facto relationship, and has a young child which he supports.
Submissions by Mr Couchman
[18] The Committee has noted comments in Mr Couchman’s written penalty submissions in which he accepts the test results and freely acknowledges his use of methamphetamine.
Submissions as to Penalty
In relation to penalty Mr Cruickshank provided written submissions. The salient points are that:
[19] Mr Couchman is an unlicensed freelance Track Rider. He has been involved in the racing industry for all of his adult life. He is 24 years of age.
[20] He has admitted a breach of the rules in relation to the positive drug test undertaken on 13th May 2015 at the Byerley Park Training Centre in Auckland.
[21] 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 drugs.
[22] 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.
[23] 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.
[24] On this occasion Mr Couchman has presented himself at the Byerley Park Training Centre to ride track work while the drugs Methamphetamine and Amphetamine were within his body.
[25] Methamphetamine is a Class A controlled drug and Amphetamine is a Class B controlled drug. Mr Couchman does not currently have the ability to pay a fine.
[26] It is submitted that a period of 9 months disqualification/suspension and the cost of the analysis of $187.50 (to the RIU) should be imposed.
[27] In support of this Mr Cruickshank referred to the decision of RIU v Isherwood (4.11.13). In that case the rider held a Class A Rider Licence and tested positive to Methamphetamine and Amphetamine whilst riding track work. She was disqualified for a period of 12 months and ordered to pay the cost of the testing analysis.
In relation to penalty Mr Couchman provided written submissions. The salient points are that:
[28] Mr Couchman accepts responsibility for the breach.
[29] Mr Couchman requests that any proposed penalty should take account of his personal circumstances and that it commences from 18 May 2015 which is the date that he was served with his stand down notice.
[30] Mr Couchman submitted that he has worked in the racing industry doing various tasks since he left school. He said he has worked for trainers in Cambridge, Christchurch, Pukekohe and Byerley Park. He submitted that although he generally operates as a self-employed freelance rider, there have been periods when he has been employed by one trainer.
[31] Mr Couchman submitted that he supports his 1 year old daughter, and is no longer in a relationship with her mother.
[32] Mr Couchman submitted that he started using methamphetamine when he was 19 years old as a party drug and as an aid to manage his weight. He said he is no longer using the drug and is now living in a stable environment well apart from his former associates. He said that he now appreciates the danger that he placed himself, other track riders and horses in when riding having used methamphetamine.
[33] Mr Couchman submitted that he is at a stage in life where he seeks to make a drastic change in the way he lives his life. He said that he knows no other life other than racing and has no other work related skills. He said he wants to remain drug free and is willing to undertake a rehabilitation programme.
[34] Mr Couchman has noted the RIU are seeking a 9 month penalty which he understands is consistent with the penalty imposed in the rider L Isherwood for a similar breach. In that regard he asked the Committee to take into account his individual circumstances.
Reasons for Penalty
[35] The Committee has carefully considered the facts and submissions lodged by the Informant and Defendant and to the extent they exist we have weighed up the factors that we have determined to be mitigating and aggravating. We have also had due regard to the circumstances of the breach as well as Mr Couchman’s individual and personal circumstances.
[36] We have been advised Mr Couchman is a 24 year old man who has been involved in the racing industry all his adult working life and he currently supports child from income derived as an unlicensed Trackwork Rider.
[37] In his written submissions Mr Couchman has accepted responsibility for his offending and has taken some positive steps to turn his life around. He has shifted accommodation into a more settled environment with his grandparents and advises that he is no longer using drugs. He also indicates a willingness to seek rehabilitative help for his drug dependency. For that we give him credit as well as his admission of the breach.
[38] The Informant has submitted that historical penalties for breaches of the industry drug laws show some divergence and the type of drug, the situation and the amount of the drug in the system add to this divergence. The Informant referred the Committee to the decision of RIU v Isherwood (2013) the circumstances of which are similar to many aspects of this charge. Taking those factors into account the Informant submitted a penalty of 9 months would be appropriate for this breach.
[39] The Committee is mindful of the fact that breaches of similar culpability should, as a general rule attract broadly similar penalties and with this in mind the Committee has taken guidance from a limited number of comparable decisions and penalties that have resulted from breaches of this Rule. In particular we have noted the various similarities and points of difference. In our view the most relevant decisions for our consideration are those that specifically relate to methamphetamine or amphetamine detection – these include:
• RIU v Waddell (2010) – 14 months disqualification
• RIU v Ihaka (2010) – 18 months disqualification
• RIU v Isherwood (2013) – 12 months disqualification
[40] The Committee noted that the Rule and penalty concerning substance abuse were amended in late 2009. The main changes were an increase in penalty from $20,000 fine/1 year to the current $50,000 fine/5 year (Rule 803(2) (C) refers).
[41] Despite the penalty uplift the Committee has noted that penalties for breaches prior to the change where methamphetamine was involved attracted disqualifications in the 5 to 8 month range, (for example NZTR v Lloyd and RIU v Carmine).
[42] The cases referred to by the Committee all involved Licensed Riders whereas Mr Couchman is an unlicensed Trackwork Rider. Although Mr Couchman is unlicensed he is still a ‘rider’ in terms of the Rules which define a ‘rider’ as follows:
a person authorised by these Rules, whether as the holder of a Rider’s Licence or otherwise howsoever to ride a horse in a race, and for the purposes of the drug and alcohol testing provisions in these Rules and Rule 610 includes the holder of a Class A miscellaneous licence (except where such a Licence contains a condition prohibiting the Licenceholder from riding horses), a Class B miscellaneous licence or a Class D miscellaneous licence (except where such a Licence contains a condition prohibiting the Licenceholder from riding horses) and any other person who rides or presents himself to ride a horse in trackwork and/or trials (including jump-outs and/or tests for certification purposes) and/or at any Training Facility or any Trainer’s Premises. [Amended 1 December 2013]
[43] The Committee believes that any rider who uses and is potentially affected by prohibited substances, particularly the Class A Drug methamphetamine presents as a danger to not only him or herself, but also other participants and horses.
[44] Mr Couchman, on his own admission, has been using the substance for about 5 years. Therefore the use which led to this detection was clearly not the result of ‘one off’ experimentation.
[45] We have noted the Informants submission that this breach could be dealt with by way of 9 month disqualification/suspension. Consideration of suspension is not within our remit. Rule 803(2) (C) specifically refers to disqualification as a sentencing option and makes no reference to suspension.
[46] Further, as an unlicensed rider, the Committee cannot impose a suspension as part of any proposed penalty as he does not hold a licence capable of being suspended.
[47] The Committee is firmly of the view that there is a strong need to censure Mr Couchman’s conduct and send a clear message to other industry participants that there is no place for illegal substances within the industry, particularly classified drugs such as methamphetamine and amphetamines. Accordingly, we are satisfied that disqualification is an appropriate penalty.
[48] There are no compelling factors that we consider would necessarily mitigate any proposed penalty, other than Mr Couchmans admission of the breach and his desire to seek rehabilitation. But we appreciate the impact that any disqualification may have on Mr Couchman given that riding trackwork is currently his primary source of income.
[49] We have benchmarked our penalty decision making around the cases previously referred to, namely RIU v Isherwood, RIU v Ihaka and RIU v Waddell to establish a suitable starting point of 13 months disqualification.
[50] Accordingly having made adjustments for Mr Couchman’s admission and other relevant factors we impose a 12 months period of disqualification. Mr Couchman requested the Committee consider backdating any proposed disqualification to the date in which he was stood down (18 May 2015). We are unable to accommodate this request on the basis that Rule 1101 (1) does not allow for this to occur. For the sake of clarity Rules 1101 and 1104 set out the implications of a disqualification as follows:
1101 (1) Each disqualification imposed under these Rules will take effect immediately, unless the Tribunal imposing the disqualification specifies a later date on which the disqualification will take effect.
(2) For the avoidance of doubt, from the date such disqualification takes effect until such time as a person’s and/or a horse’s name appears in the List of Disqualifications that person and/or horse shall be subject to the same disabilities affecting persons and horses whose names then currently appear in the List of Disqualifications.
1104 (1) A person who is disqualified in accordance with this Part XI, or whose name appears in the list of disqualifications of Another Racing Authority shall not during the period of that disqualification:
(a) enter or run any horse for any Race, either in his own name or in that of any other person and every entry theretofore made by him or of a horse in which he has any interest for a Race to be run shall be void as from the date of disqualification;
(b) train any horse or ride any horse in a Race or be employed in any capacity in connection with the training or racing of horses; and/or
(c) enter or go upon any Racecourse or any Training Facility or other place owned or controlled by any Club or by any consortium or other entity of which a Club is a member or in which it is a participant.
(3) A person who contravenes this Rule shall, in addition to any other penalty which may be imposed under any of these Rules, be disqualified for an additional period of not less than six months to commence at the end of the period of the current disqualification. For every second or subsequent breach he shall, in addition to any other such penalty, be disqualified for a period of not less than 12 months to commence at the expiry of the immediately previous period of disqualification.
Penalty and Costs
[51] Having carefully considered all of the material that has been placed before us we impose the following penalties and make the following orders:
[a] That Mr Couchman is disqualified for 12 months commencing from the 24th July 2015 which is the date of this decision.
[b] That Mr Couchman pays the cost of analysis - $187.50, payable to the RIU.
[c] That although this matter was heard on a raceday it was conducted in the nature of a non-race hearing, on that basis some JCA costs have been incurred. However, on this occasion the JCA have not sought costs.
G R Jones B Scott
Chair Committee Member
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