Non Raceday Inquiry RIU v CLE Kennett – Decision dated 22 September 2015 – Chair, Prof G Hall

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decisiondate: 22/09/2015

hearing_title: Non Raceday Inquiry RIU v CLE Kennett - Decision dated 22 September 2015 - Chair, Prof G Hall

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Decision:

BEFORE AN JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT OAMARU

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND CRAIG LEONARD EDWIN KENNETT

Open Horseman

Respondent

Information: A3614

Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Member

Appearing: Mr B Kitto, for the Informant

The Respondent, Mr Kennett

Date of hearing /oral decision: 13 September 2015

DECISION OF JUDICIAL COMMITTEE

[1] The respondent, Mr Craig Kennett, resides in Waimate. He was licensed as a Horseman until his Horseman’s licence was suspended on 17 July 2015. He held a Licence to Train until 2013.

[2] On 17 July 2015 an Information was filed with the Registrar against Mr Kennett, in his absence, for a breach of r 512(2) in that he failed to supply a sample of urine or saliva at the Forbury Park Trotting Club’s race meeting, held at Forbury Park that evening, after being requested to do so.

[3] The relevant rules are:

512(2) 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 at a time and place nominated by the Stipendiary Steward or Racecourse Inspector or Judicial Committee refuses or fails:

(a) to comply with such a request.

[4] Rule 1003(1) provides:

A person who commits a breach of any Rule shall (subject to the provisions of r 111(1), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:

(a) a fine not exceeding $10,000.00; 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.

[5] Mr Kennett confirmed to this Committee that he admitted the breach of r 512(2)(a).

The facts

[6] Ten drivers were selected for random alcohol and drug testing at the Forbury Park Trotting Club’s race meeting on 17 July 2015. They were all required to supply urine and/or saliva samples. Mr Kennett was one of the drivers selected.

[7] Mr Kennett was spoken to in the assembly area adjacent to the float park at 6.45pm. He was advised that driver drug testing was being conducted and he was requested to report to the drug testing station where he would be served with the appropriate form. He was advised that the technician was a male.

[8] Just prior to 6.58pm Mr Kennett arrived at the drug station. He was requested to accompany the Racing Investigator to the Stipendiary Stewards’ room where he was alcohol breath tested, returning a 0000 reading. At 6.58pm he was served with the prescribed form requiring him supply a sample of urine/saliva. He signed the form. On the back of the form in bold type and underlined, paragraph 9 (the number being highlighted) states:

A horseman from whom a sample has been requested and who, for whatever reason, has failed to supply a sample, shall not leave the confines of the racecourse or other place of testing without the prior permission of the Racecourse Inspector and/or Stipendiary Steward.

[9] Mr Kennett accompanied the Racecourse Investigator to the drug station where he was introduced to the technician. A conversation took place and Mr Kennett was requested to return to the drug testing station when he had finished his racing commitments.

[10] During the meeting in question nine other drivers were alcohol and urine tested. All had to return at a time later than the time when they were served with their notices. This, Mr Kitto explained, was normal practice so as not to interfere with drivers’ driving commitments on the night.

[11] Mr Kennett was driving the horse VALMAGNE, which he part owns, in Race 6. This race was scheduled to begin at 7.45pm. He needed to assist his son gearing up the horse and he also had to change into his driving attire.

[12] Mr Kennett carried out his racing commitments but did not return to the drug testing station. Announcements were made over the racecourse intercom for Mr Kennett to report to the Stewards Room with no result.

[13] Mr Kitto visited the box allocated to Mr Kennett’s horse but no one was present and the box gave the appearance of not having been used. Telephone calls were made to his son, Mr Josh Kennett, with whom he was travelling, but the call went to the answer phone.

[14] On 20 July 2015, Mr Kennett was served with the Information by email. He was also served personally with a copy of the Information at the Oamaru racecourse on 2 August 2015.

[15] In explanation of his actions, Mr Kennett said to Mr Kitto he was very disappointed with the race and how the horse VALMAGNE went. It was very cold and he and his son wanted to get home as soon as they could. He simply forgot about the urine testing and left the racecourse about 15 minutes after the race to return to Waimate. He told Mr Kitto that he did remember later but was heading out of Dunedin by that time and decided it was too late, and he and his son carried on home. Mr Kennett did not make contact with the Racing Investigator or Stewards about his having left the racecourse.

[16] When questioned by this Committee, Mr Kennett repeated the explanation he had given to Mr Kitto. He acknowledged it was a poor decision he had made to decide to continue home when he realised he had forgotten to return to the testing room. He said he was at the end of the main street in Dunedin, and contemplated returning, but said he tended to concentrate on one matter at a time, and he was still upset at the poor performance of the horse.

[17] Mr Kennett commented that VALMAGNE had travelled down from Waimate poorly and he did not want the horse to have another hour on the float. He added he had not told his son that he had to go back and provide a urine sample. He also believed it would have been too late to return to the course and that his opportunity to provide a sample would have gone. He said he never thought to try to contact Mr Kitto or a Stipendiary Steward either later that night or over the weekend. He had simply resigned himself to being charged.

Submissions as to penalty

[18] Mr Kitto stated that it is the policy of the RIU that Harness Racing in New Zealand is drug free. This policy applies to both horses and drivers. The use of controlled drugs, as defined in the Misuse of Drugs Act, by drivers engaged in trials or races seriously impugns the integrity of racing and, more particularly, the health and safety of drivers and horses. The purpose of the drug related rules was therefore quite plain.

[19] Mr Kitto submitted that in 1998 the Racing codes put in place rules and protocols to allow for the drug testing of drivers. It followed that the RIU, on behalf of the racing codes, took a serious view of any driver who failed a drug test, or who, for whatever reason, failed or refused to present himself or herself for drug testing when properly required to do so by a Racing Investigator or a Stipendiary Steward.

[20] Mr Kennett by his explanation had failed to supply a urine sample because he forgot to do so. He had not refused to supply a sample. However, by failing to supply a sample, there was no way of knowing what the result of an analysis of a sample supplied by Mr Kennett would have been. Thus any breach of this rule could only be viewed in a serious light.

[21] Mr Kitto produced a copy of Mr Kennett’s Driver/Trainer History Records. Mr Kennett had a previous conviction in 2011 for refusing to give a urine sample. His non-compliance was because the technician was a woman, a registered nurse. On this occasion his Horseman’s licence was suspended for nine months and he was fined $400.

[22] Mr Kitto submitted it was an aggravating factor that after Mr Kennett had left the racecourse and realised he had failed to supply a sample, at a time when he would have been only 10 to 15 minutes from the racecourse, he made no contact with racing officials on the night with an explanation as to his omission.

[23] Mr Kitto referred this Committee to four cases:

RIU v Robb (23.03.2014) 2nd offence — refusing sample — 6 months’ disqualification.

RIU v Ramage (24.07.2012) failed to supply sample – dehydrated – 9 months’ suspension.

RIU v Moka (17.05.2012) unlicensed track worker – failed to turn up — thought would show cannabis — 7 months’ suspension.

NZTR v Thornton (25.05.2010) track rider – stated he was not going to supply — 6 months’ disqualification

[24] Mr Kitto concluded his submission by stating the RIU sought a penalty of 12 months’ suspension of the respondent’s Horseman’s licence.

[25] Mr Kennett expressed his remorse to this Committee. He said he agreed with this Committee that his actions once he remembered he had forgotten to give a urine sample were not what would be expected of an experienced licence-holder, such as himself. (Mr Kennett, who is aged 48, first held a Licence to Train in the 1989-90 season and he has been driving since 1992-93.) He said looking back he realised he had been stupid but his mind had been on a different track on the night.

[26] With reference to his current involvement in Harness Racing, he said VALMAGNE was the only horse currently in racing trim but he had a number of other horses that he was preparing.

[27] Mr Kennett told this Committee that he did not drink and he had never used cannabis in his life. He worked in private security in Waimate and had a clean police record. He concluded his submission by stating that the period of suspension should be as brief as this Committee thought appropriate, but he would accept 12 months’ suspension if that was our decision.

Decision

[28] Mr Kennett has admitted the breach of r 512(2). We thus find the breach proved in accordance with r 1111(d).

[29] We are satisfied that Mr Kennett did forget to return to the testing station on the evening in question and left the track without having met his obligation to give a urine sample. However, when on his way home, and some 10 to 15 minutes from the racecourse, he recalled he had not returned to the testing room. We have difficulty in understanding Mr Kennett’s actions from this time. VALMAGNE raced in race 6. That race was at 7.45pm. The final race was not until 9.13pm. There was thus time for him to have returned to the course or to have rung Mr Kitto and obtained advice as to what action to take, and to return, if so advised. That Mr Kennett had “a one-track mind” at the time because he was so concerned at VALMAGNE’s poor performance is simply not an acceptable excuse.

[30] Mr Kennett’s omission to return to Forbury Park is compounded by the fact he heard his son’s cellphone ring when in the vehicle driving home and ignored this fact. When he did not have a cellphone himself, the possibility it was Mr Kitto endeavouring to contact him should have been evident to Mr Kennett. He acknowledged as much to this Committee.

[31] This is the factual basis on which we come to impose penalty. Mr Kitto has suggested the maximum penalty is appropriate. This is primarily because the respondent has a previous breach of this rule, albeit in quite different circumstances, in 2011. He was suspended for 9 months and fined $400 on that occasion.

[32] Mr Kennett’s failure to return to the racecourse or to endeavour to arrange with Mr Kitto to provide a urine sample the next day thus needs to be viewed in the context of this earlier breach. In other words, Mr Kennett was on notice as to the seriousness with which the racing industry generally, and the RIU and the JCA, in particular, view a breach of this rule.

[33] The integrity of Harness Racing is at issue when a licence-holder fails to comply with his obligations under the Rules. We believe a starting point of nine months’ suspension is appropriate for this breach having regard to its gravity and Mr Kennett’s culpability. We make an uplift of three months for his previous breach of this rule, although that was refusing to provide a sample, whereas the charge on this occasion is failing to provide. That takes us to the maximum penalty of 12 months’ suspension.

[34] Mr Kennett explained that he had been rude and abrupt with respect to the 2011 charge because he believed he had been picked on due to an earlier charge relating to the excessive use of the whip, and, as far as he was concerned, that breach was due to a gender issue. He had refused to urinate in front of a female nurse.

[35] Nevertheless, we have to hold Mr Kennett accountable for his second breach of this rule in a relatively short period of time (four years). We have looked at the cases that Mr Kitto has provided to us. None are on all fours with the case before us, and consequently they provide only limited guidance. We believe a suspension is appropriate in the circumstances of this case, which require us to address the need for general, and significantly, specific deterrence. We factor into the equation the fact that Mr Kennett drives only infrequently. He had 15 drives last season and 35 the season before.

[36] Mr Kennett is otherwise of good character, he has co-operated with the RIU, and has admitted the breach, although his full acceptance of the summary of facts was at a late stage. He was open and frank with this Committee as to the circumstances of the breach. We believe a discount of two months is appropriate for these mitigating factors.

[37] Mr Kennett does not currently hold a Horseman’s licence. He is suspended from obtaining a Horseman’s licence for a period of ten months. Mr Kennett’s licence was automatically suspended on 17 July due to the application of r 514(1). The period of suspension thus starts from that day and continues until 16 May 2016.

[38] The RIU does not seek costs. Clause 29.1 of Schedule 5 to the Rules of Harness Racing, which empowers a Committee to make an award of costs in favour of the JCA, was not in force at the time of the respondent’s breach of the Rules. We make no order as to costs.

Dated at Dunedin this 22nd day of September 2015.

G Hall

Chairman

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