Non Raceday Inquiry HRNZ v KJ Marshall – 8 September 2011 – Decision dated 9 September 2011
ID: JCA14877
Decision:
BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND
IN THE MATTER of Harness New Zealand Rules of Racing
BETWEEN Bryan James OLIVER
Informant
AND Kyle James MARSHALL
Defendant
JUDICIAL COMMITTEE: Mr Gavin JONES (Chair) and Mr Adrian DOOLEY (Member)
VENUE: Alexandra Park, Auckland
PRESENT: Mr K Marshall (Junior Horseman), Mr B Hackett (Employer and Licensed Trainer), Mr B Oliver (Assistant Racing Investigator) and Mr D Branch (Registrar)
DATE OF HEARING: 8 September 2011
DATE OF ORAL DECISION: 8 September 2011
DATE OF REASONS FOR DECISION: 9 September 2011
The Charge
1) A charge was brought against Mr Marshall (“the Defendant”) alleging that:
“On Thursday 18 August, he, being a Junior Horseman, having been requested by a Racecourse Investigator to supply a sample of his urine was found upon analysis to contain the controlled drug cannabis as defined in the misuse of drugs act 1975, committed a breach of Rule 512(1) of Harness Racing New Zealand Inc AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to the provisions of Rule 1003(1) of the said Rules”.
2) Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relating to the detection of Controlled Drugs or other Illicit Substances [S. 512(1)] provide that:
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 Rules relating to General Penalties [s.1003(1)] provide that:
Every person who commits a breach shall be liable to:
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) At the commencement of the hearing the charge was put to Mr Marshall who acknowledged its nature and substance and confirmed his admission of the breach. He also acknowledged that he had seen all the relevant documents and that he accepted the evidence.
5) The proposed procedure for the conduct of the hearing was explained to the Informant and the Defendant. They confirmed that they had no issues or concerns with the proposed procedure for the hearing.
6) Given that Mr Marshall admitted the breach of the Rule, the charge is therefore proved.
7) Mr Marshall was supported at the hearing by his employer, Mr B Hackett who is a Licensed Trainer.
Summary of Facts
8) Mr Oliver presented an agreed summary of facts. The key relevant points are as follows:
9) Mr Marshall is a licensed Junior Horseman. He has held his licence since January 2011 and has had 30 raceday drives.
10) On 18 August 2011 Mr Marshall drove in Race 2 at the Cambridge Raceway. Following the race he was requested to participate in a routine drug test. He provided a urine sample to the attending Authorised Person which was submitted to the ESR for analysis.
11) On 23 August 2011 the Racing Integrity Unit (RIU) was advised by the ESR that the sample had tested positive to Cannabis.
12) Cannabis is controlled drug as defined in the Misuse of Drugs Act 1975 and its detection is prima facie a breach of Rule 512 (1).
13) On 23 August 2011 Mr Marshall was served with a copy of the (ESR) Analysts Certificate and Notice that his Junior Horseman’s License was forthwith suspended.
14) Mr Marshall was interviewed on 25 August 2011 by a RIU Racing Investigator. He told the investigator that he smoked cannabis at a party during the previous weekend and that it was the first time that he had smoked cannabis since being employed by his current employer.
15) Mr Marshall acknowledged that he had made a “huge mistake” and vowed never to smoke cannabis again. He offered a sincere apology to industry stakeholders who have supported his brief career and recognised that he will need to work hard to regain their respect.
Submissions by Mr Marshall
In response to the summary of facts Mr Marshall submitted:
16) That he had made a mistake and would not do so again. He said that the place where he smoked the cannabis was in another town with people whom he now realises are a bad influence on him.
Mr Hackett submitted:
17) That Mr Marshall was showing exceptional promise and is a great worker deserving of another chance.
18) Submissions as to Penalty
In relation to penalty Mr Oliver submitted that:
19) Harness Racing New Zealand has long supported a no tolerance stance to the use of illicit drugs within the industry and in support of this promulgated drug testing policy in 1998.
20) There have been a limited number of drug detections in Harness Racing to date and there is limited precedent in terms of penalty. In one case involving a Junior Horseman (HRNZ v P, 2001) a penalty of 6 months suspension, $500 fine and costs of $855 were imposed.
21) Mr Marshall was cooperative throughout the enquiry and appeared remorseful.
22) The RIU sought a penalty of three months suspension and a fine of $200.
23) The RIU sought costs of $478.85. Those being the cost of ESR analysis and the cost of the Authorised Person (Registered Nurse) who was required to obtain the sample.
In relation to Penalty Mr Hackett and Mr Marshall submitted that:
24) Mr Hackett submitted that on the basis of Mr Marshall’s personal circumstances a substantial fine would cause him some hardship. He said that his livelihood was dependant on industry earnings and that he was yet to drive a winner from his 30 drives to date. He asked the Committee to consider a fine of no more than $200 and two months suspension.
25) Mr Marshall submitted that he was not well placed to pay a large fine and asked the Committee to consider a suspension of no more than two months.
26) Neither Mr Hackett nor Mr Marshall made any submissions in relation to the RIU’s request for the payment of Analysts costs.
27) The Committee was also provided with a letter of support from Mr Marshalls Co-Employer, Ms M Wallis. She said that:
“I have employed Kyle Marshall since 28 March 2011. During his time with my stable he has always been a very conscientious and hardworking young man. His horsemanship is very good and he is also very polite and respectful towards clients and other peers.
In light of this recent incident regarding his positive test to drugs, I know that he is very remorseful and I believe him to be mature enough that he learns from his mistake and would not have it happen again. I am willing to see he gets the chance to prove this and keep him in my employment”.
Reasons for Penalty
28) The Committee has carefully considered the facts and submissions lodged by both the Informant and Defendant.
29) Although there are no particular aggravating features in this case, the charge itself is serious and we believe that the use of cannabis or any other illicit drug by any licensed person is a workplace hazard and does have the potential to undermine the integrity and reputation of the industry.
30) The mitigating features of this case are that Mr Marshall admitted the breach at the earliest possible time; he fully cooperated with the investigation and he has not previously breached Rules relating to similar type of offences.
31) Having heard in some detail about Mr Marshalls personal circumstances we are not unsympathetic. We took particular note of his demeanour and attitude and we believe that the remorse is genuine. We were impressed by the support of his employers who have indicated that they are willing to give him a chance to prove himself.
32) The Committee has taken guidance from the limited number of similar decisions and penalties resulting from breaches of this or similar Rules. In particular we have noted similarities and points of difference.
33) We also noted that in the case of HRNZ v R (2009), which related to a charge of failing to provide a sample for drug testing, a horseman received a penalty of one month’s suspension, $750 fine and was required to pay costs to HRNZ.
Penalty:
34) 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 the Defendant is suspended for two (2) calendar months, commencing 24 August 2011 to 24 October 2011 inclusive. The commencement date takes into account the date in which he was served with Notice that his Junior Horseman’s license was suspended pending this hearing.
b. That costs in favour of HRNZ are awarded. Those being $478.85 for the actual costs of ESR analysis and the Authorised Person.
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 (Chair) A Dooley (Committee)
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 11/10/2011
Publish Date: 11/10/2011
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: 8707c72e9c0f2ca3cb100f4c9432e985
informantnumber: 67315
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plea:
penaltyrequired:
decisiondate: 11/10/2011
hearing_title: Non Raceday Inquiry HRNZ v KJ Marshall - 8 September 2011 - Decision dated 9 September 2011
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND
IN THE MATTER of Harness New Zealand Rules of Racing
BETWEEN Bryan James OLIVER
Informant
AND Kyle James MARSHALL
Defendant
JUDICIAL COMMITTEE: Mr Gavin JONES (Chair) and Mr Adrian DOOLEY (Member)
VENUE: Alexandra Park, Auckland
PRESENT: Mr K Marshall (Junior Horseman), Mr B Hackett (Employer and Licensed Trainer), Mr B Oliver (Assistant Racing Investigator) and Mr D Branch (Registrar)
DATE OF HEARING: 8 September 2011
DATE OF ORAL DECISION: 8 September 2011
DATE OF REASONS FOR DECISION: 9 September 2011
The Charge
1) A charge was brought against Mr Marshall (“the Defendant”) alleging that:
“On Thursday 18 August, he, being a Junior Horseman, having been requested by a Racecourse Investigator to supply a sample of his urine was found upon analysis to contain the controlled drug cannabis as defined in the misuse of drugs act 1975, committed a breach of Rule 512(1) of Harness Racing New Zealand Inc AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to the provisions of Rule 1003(1) of the said Rules”.
2) Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relating to the detection of Controlled Drugs or other Illicit Substances [S. 512(1)] provide that:
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 Rules relating to General Penalties [s.1003(1)] provide that:
Every person who commits a breach shall be liable to:
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) At the commencement of the hearing the charge was put to Mr Marshall who acknowledged its nature and substance and confirmed his admission of the breach. He also acknowledged that he had seen all the relevant documents and that he accepted the evidence.
5) The proposed procedure for the conduct of the hearing was explained to the Informant and the Defendant. They confirmed that they had no issues or concerns with the proposed procedure for the hearing.
6) Given that Mr Marshall admitted the breach of the Rule, the charge is therefore proved.
7) Mr Marshall was supported at the hearing by his employer, Mr B Hackett who is a Licensed Trainer.
Summary of Facts
8) Mr Oliver presented an agreed summary of facts. The key relevant points are as follows:
9) Mr Marshall is a licensed Junior Horseman. He has held his licence since January 2011 and has had 30 raceday drives.
10) On 18 August 2011 Mr Marshall drove in Race 2 at the Cambridge Raceway. Following the race he was requested to participate in a routine drug test. He provided a urine sample to the attending Authorised Person which was submitted to the ESR for analysis.
11) On 23 August 2011 the Racing Integrity Unit (RIU) was advised by the ESR that the sample had tested positive to Cannabis.
12) Cannabis is controlled drug as defined in the Misuse of Drugs Act 1975 and its detection is prima facie a breach of Rule 512 (1).
13) On 23 August 2011 Mr Marshall was served with a copy of the (ESR) Analysts Certificate and Notice that his Junior Horseman’s License was forthwith suspended.
14) Mr Marshall was interviewed on 25 August 2011 by a RIU Racing Investigator. He told the investigator that he smoked cannabis at a party during the previous weekend and that it was the first time that he had smoked cannabis since being employed by his current employer.
15) Mr Marshall acknowledged that he had made a “huge mistake” and vowed never to smoke cannabis again. He offered a sincere apology to industry stakeholders who have supported his brief career and recognised that he will need to work hard to regain their respect.
Submissions by Mr Marshall
In response to the summary of facts Mr Marshall submitted:
16) That he had made a mistake and would not do so again. He said that the place where he smoked the cannabis was in another town with people whom he now realises are a bad influence on him.
Mr Hackett submitted:
17) That Mr Marshall was showing exceptional promise and is a great worker deserving of another chance.
18) Submissions as to Penalty
In relation to penalty Mr Oliver submitted that:
19) Harness Racing New Zealand has long supported a no tolerance stance to the use of illicit drugs within the industry and in support of this promulgated drug testing policy in 1998.
20) There have been a limited number of drug detections in Harness Racing to date and there is limited precedent in terms of penalty. In one case involving a Junior Horseman (HRNZ v P, 2001) a penalty of 6 months suspension, $500 fine and costs of $855 were imposed.
21) Mr Marshall was cooperative throughout the enquiry and appeared remorseful.
22) The RIU sought a penalty of three months suspension and a fine of $200.
23) The RIU sought costs of $478.85. Those being the cost of ESR analysis and the cost of the Authorised Person (Registered Nurse) who was required to obtain the sample.
In relation to Penalty Mr Hackett and Mr Marshall submitted that:
24) Mr Hackett submitted that on the basis of Mr Marshall’s personal circumstances a substantial fine would cause him some hardship. He said that his livelihood was dependant on industry earnings and that he was yet to drive a winner from his 30 drives to date. He asked the Committee to consider a fine of no more than $200 and two months suspension.
25) Mr Marshall submitted that he was not well placed to pay a large fine and asked the Committee to consider a suspension of no more than two months.
26) Neither Mr Hackett nor Mr Marshall made any submissions in relation to the RIU’s request for the payment of Analysts costs.
27) The Committee was also provided with a letter of support from Mr Marshalls Co-Employer, Ms M Wallis. She said that:
“I have employed Kyle Marshall since 28 March 2011. During his time with my stable he has always been a very conscientious and hardworking young man. His horsemanship is very good and he is also very polite and respectful towards clients and other peers.
In light of this recent incident regarding his positive test to drugs, I know that he is very remorseful and I believe him to be mature enough that he learns from his mistake and would not have it happen again. I am willing to see he gets the chance to prove this and keep him in my employment”.
Reasons for Penalty
28) The Committee has carefully considered the facts and submissions lodged by both the Informant and Defendant.
29) Although there are no particular aggravating features in this case, the charge itself is serious and we believe that the use of cannabis or any other illicit drug by any licensed person is a workplace hazard and does have the potential to undermine the integrity and reputation of the industry.
30) The mitigating features of this case are that Mr Marshall admitted the breach at the earliest possible time; he fully cooperated with the investigation and he has not previously breached Rules relating to similar type of offences.
31) Having heard in some detail about Mr Marshalls personal circumstances we are not unsympathetic. We took particular note of his demeanour and attitude and we believe that the remorse is genuine. We were impressed by the support of his employers who have indicated that they are willing to give him a chance to prove himself.
32) The Committee has taken guidance from the limited number of similar decisions and penalties resulting from breaches of this or similar Rules. In particular we have noted similarities and points of difference.
33) We also noted that in the case of HRNZ v R (2009), which related to a charge of failing to provide a sample for drug testing, a horseman received a penalty of one month’s suspension, $750 fine and was required to pay costs to HRNZ.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
34) 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 the Defendant is suspended for two (2) calendar months, commencing 24 August 2011 to 24 October 2011 inclusive. The commencement date takes into account the date in which he was served with Notice that his Junior Horseman’s license was suspended pending this hearing.
b. That costs in favour of HRNZ are awarded. Those being $478.85 for the actual costs of ESR analysis and the Authorised Person.
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 (Chair) A Dooley (Committee)
hearing_type: Non-race day
Rules: 512(1)and 1003 (General Penalties)
Informant: Mr BJ Oliver - Assistant Racing Investigator
JockeysandTrainer:
Otherperson:
PersonPresent: Mr B Hackett - Employer of Mr Marshall, Mr D Branch - Registrar
Respondent: Mr KJ Marshall - Junior Horseman
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