Non Raceday Inquiry – NZTR v K Ormsby – 3 May 2010 – Decision

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hearing_title: Non Raceday Inquiry - NZTR v K Ormsby - 3 May 2010 - Decision

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IN THE MATTER OF THE NEW ZEALAND RULES OF RACING BETWEEN:

INFORMANT:   Mr B F McKenzie, Racecourse Inspector

DEFENDANT:   Mr Kade Ormsby, licensed track work rider.

ALSO PRESENT:  Mr J W McKenzie, Chief Racecourse Inspector

HEARING    Te Rapa Racecourse       3 May 2010 at 11.00 am

JUDICIAL COMMITTEE:  R M SEABROOK (Chairman)    B SCOTT (Committee Member)

The Defendant, who failed to attend the hearing, was served a copy of the charge by the Racecourse Inspector Mr B F McKenzie. This charge comes pursuant to Rule 656 (3).

THE CHARGE READS AS FOLLOWS:

THAT on Monday 19^th April 2010 at Cambridge, being a rider who, having been requested by an Investigator to supply a sample of his urine which was found, upon analysis, to contain the controlled drug Cannabis as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 656 (3) of the New Zealand Rules of Racing AND THAT you are thereby liable to the penalty or penalties which may be imposed upon your pursuant to the provisions of Rule 803 of the said Rules.

SUMMARY OF FACTS presented by Mr B F McKenzie:

Mr McKenzie told the Committee that he had gone to some trouble to contact Mr Ormsby concerning today’s hearing.  He explained to him that if he was not attending, he must send a signed letter acknowledging his guilty plea which he had intimated to Mr McKenzie he wished to do. Mr Ormsby failed in this regard and nothing was heard from him prior to the hearing.  After hearing from Mr McKenzie the Committee is satisfied that he served the appropriate papers on Mr Ormsby thereby complying with Rule 913(1).  Further we are satisfied that formal proof was given by the prosecution covering all elements that had to be proved as if it was a not guilty plea.

PENALTY SUBMISSIONS presented by Mr J McKenzie    3 May 2010

1.       NZTR’s policy on drugs is well established and has been made known to all stakeholders and licensed persons, particularly riders.

2.        The adverse publicity that is associated with drug offences does nothing to enhance the good image of racing.

3.       The primary purpose that NZTR has a drug policy is based on safety.  Safety of the rider, the safety of other riders, the safety of the rider’s mount and all other horses in the direct company of any rider under the influence of drugs.

4.       NZ Statutory Law, the Occupational, Safety and Health Act require employers and parent organisations under which an employee is regulated, i.e. by way of license, to ensure any danger is removed from the work place.

5.       The presence of drugs and those under the influence are deemed a safety issue, and where suspected or where it is apparent, must be removed.

6.       This Defendant has breached not only the Rules of Racing, but also the Criminal Law – Misuse of Drugs Act 1975.

7.       The principles for sentencing are clearly set out in two leading cases. – 1994 Appeal Hearing NZTR v P and Judicial Committee decision 2009 – NZTR v C

8.       The level of Cannabis detected in the sample is relatively low.  It must be emphasised with only one sample analysed it is not known whether the level was going up or coming down.  Suffice to say it is low but still a defined positive.

9.       Mr J McKenzie told the Committee that although this was Mr Ormsby’s first charge any penalty imposed should reflect Mr Ormsby’s non appearance.

10.   Mr McKenzie submitted a suspension of not less than 1 month and a fine of $200 would be appropriate.  In addition he asked for costs of $150 for NZTR.

PENALTY DECISION

The Committee carefully considered all evidence and submissions as presented.  Mitigating factors in this case are that this was Mr Ormsby’s first appearance before a racing tribunal and that his cannabis level was low when tested.

However Mr Ormsby has nevertheless breached the Misuse of Drugs Act (1975) and Rule 656(3) of the NZTR Rules of Racing.  Clearly Mr Ormsby was irresponsible in not attending the hearing, or indeed not responding to Mr B McKenzie’s requests surrounding the hearing.  Integrity and safety are two of the most important elements in our industry and both of these were compromised by Mr Ormsby’s actions.  The image that these charges portray to the public is always of concern.  It is therefore important that the penalty must act as a deterrent to all in the industry.

As Mr Ormsby’s license was withdrawn on 21 April, 2010, this Committee formally reinstates such license as at today’s date 3 May, 2010.

Taking all the above factors into account we impose a suspension of Mr Ormsby’s license for a period of 6 weeks.  This is to take effect from 21 April 2010 and conclude on 3 June, 2010.  In addition we impose a fine of $200 and order costs of $150 to NZTR and $300 to the JCA.

Richard Seabrook                                            Bryan Scott

Chairman                                                        Committee Member

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