Non Raceday Inquiry – NZTR v NJ Burgess 25 May 2010 – Decision

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hearing_title: Non Raceday Inquiry - NZTR v NJ Burgess 25 May 2010 - Decision

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BEFORE A JUDICIAL COMMITTEE

AT CHRISTCHURCH

IN THE MATTER       of the New Zealand

                                    Rules of Racing

BETWEEN                  NEW ZEALAND THOROUGHBRED RACING

                                    Informant

AND                            Natasha Jane BURGESS

                                    Licensed Track Work Rider                            

                                    Defendant

DATE OF HEARING: 25 May 2010

VENUE:                                  Beaumaris Room, Riccarton Racecourse.

PRESENT:                               Mr J. W. McKenzie (Chief Racecourse Inspector) for New

                                             Zealand Thoroughbred Racing

                                             Mr R. D. Scott (Racecourse Inspector)

                                             Mr J. McLaughlin (Stipendiary Steward)

                                             Miss Natasha Jane Burgess (Defendant)

JUDICIAL COMMITTEE:      J. M. Phelan – Chairman

                                         K. G. Hales – Committee Member

DATE OF DECISION:            2 June 2010

            JUDICIAL COMMITTEE’S DECISION ON PENALTY AND COSTS

[1]        An Information has been filed by Racecourse Inspector Mr R. D. Scott, and alleges a breach of Rule 656(3) of the Rules of Racing by the defendant, Licensed Track Work Rider Miss N. J. Burgess.  NZTR was represented at this hearing by Chief Racecourse Inspector Mr J. W. McKenzie.  The charge reads as follows.

“I, the abovenamed informant allege that the abovenamed Defendant committed a breach of Rule 656(3) IN THAT on Thursday the 6^th May 2010 at Riccarton, being a rider who having been requested by an Investigator to supply a sample of her 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 you pursuant to the provisions of Rule 803 of the said Rules.”

Rule 656(3) provides as follows.

“(3)     A Rider who, having been required by a Stipendiary Steward or Investigator to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) in accordance with this Rule must not have blood, breath, urine, saliva or sweat (whichever is the subject of the applicable 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.”

[2]        Miss Burgess attended the hearing and she admitted this breach of the Rules.  Miss Burgess agreed that she understood the charge and the Rule.  Pursuant to Rule 915(1)(d) we therefore found the charge to be proved.

[3]        Mr McKenzie provided an authority to prosecute from the Chief Executive of New

Zealand Thoroughbred Racing, and he also presented and read a “Summary of Facts” relating to this charge. 

[4]        On Thursday morning 6 May 2010 NZTR officials conducted drug testing procedures on a number of track work riders who were involved in riding horses at the Canterbury Jockey Club’s Training Centre at Riccarton racecourse on that day.

[5]        Miss Burgess is a Licensed Track Work Rider, and she was one of the riders selected to undergo the testing.  Miss Burgess was handed a written request for her to undergo this test by an Investigator, and a copy of this request was produced in evidence.

[6]        Later that morning Miss Burgess presented herself, as required, and supplied to the Authorised Person a sample of her urine.  This sample was given a unique bar code number (copy of document produced) and the sample was then forwarded to the ESR Laboratory in Wellington.

[7]        By certificate dated 10 May 2010 the ESR reported that the sample had tested positive for cannabis use, and a certificate to this effect was produced in evidence.

[8]        On 11 May 2010 Miss Burgess was handed a copy of the ESR Certificate and a “Licence Withdrawal Notice” (produced in evidence) issued under the provisions of Rule 657.  At this time Miss Burgess explained that she was a casual user of cannabis, and that she intended to give up the habit.

[9]        Miss Burgess did not dispute any of the matters set out in the Summary of Facts.

[10]      Submissions on Penalty: 

            Mr McKenzie presented and read “Penalty Submissions”.  He said that NZTR’s policy on drug use in the industry was well known, and it has an illicit drug free policy in terms of all riders whether they ride in races, trials or in track work.  The primary purpose of this policy was the safety of the rider and other riders, and the safety of horses.

[11]      Mr McKenzie advised that Miss Burgess is a single person aged 32 years and is employed in a local stable.  She is a licensed Class “B” Miscellaneous Track Rider, and has not previously been charged under the Rules of Racing.

[12]      Mr McKenzie said that Miss Burgess had admitted the breach, and had co-operated fully during the enquiry.  The level of cannabis detected in the test was moderate at 140Mg/ml, but well above the cut off level of 50Mg/ml.

[13]      Mr McKenzie submitted that an appropriate penalty in this case is one which is consistent with recent previous cases.  Details of penalties imposed under this Rule on 3 May 2010 were produced.  It was submitted that an appropriate penalty in this case was suspension of her licence for a period of 2 months plus a fine of $200-00.

[14]      Miss Burgess presented and read her submissions relating to this matter.  She said that she had been a casual smoker on the social scene, but that she had made adjustments to her social life to ensure that she would be away from cannabis smoking, and that this would not happen to her again.

[15]      Miss Burgess also said that she had a “dream job” which she worked hard at, and that this was a “wake up call”, which had resulted in her changing her actions and behaviour.  Miss Burgess thought that the submissions made by Mr McKenzie as to penalty were fair.

[16]      Decision on Penalty:

            Rule 803(1) applies in this case, and provides as follows.

“(1) A person who, or body or other entity (not being a Club) which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not providedelsewhere in these Rules shall be liable to:

(a)  be disqualified for a period not exceeding 12 months; and/or

(b)  be suspended from holding or obtaining a Licence for a period not exceeding 12  months. If a Licence is renewed during a term of suspension, then the suspension  shall continue to apply to the renewed Licence; and/or

(c)  a fine not exceeding $20,000.”

[17]      We take into account that Miss Burgess has admitted this breach and has not previously offended.  We were also impressed by her obvious remorse at the hearing, and her expressed determination to distance herself from the use of cannabis.

[18]      We have looked at previous penalties imposed for breaches of this Rule.  The cases referred to by Mr McKenzie were dealt with on 3 May 2010, and two of these cases in particular had very similar circumstances to this case.  In NZTR v. M the defendant was suspended for a period of 6 weeks, and fined $400-00.  In NZTR v. O the defendant was suspended for 6 weeks and fined $200-00.

[19]      We adjourned to consider the matter of an appropriate penalty.  On resuming the hearing we advised the parties of the penalty to be imposed, and also that fuller reasons for this decision would be put in writing later.  This we now do.

[20]      After considering all the submissions on penalty we were satisfied that we must impose a penalty that is consistent with the penalties imposed in previous similar cases. There is a need to maintain integrity and public confidence in racing and to this end the sentence must be a realistic punishment.  The sentence we impose must deter other persons in the racing industry from committing like offences.  Put in another way persons involved in the racing industry should be given a clear signal that offending in this way will not be tolerated.  The penalty must deter the person charged from re-offending and it must also deter others.

[21]      As Miss Burgess’ license was withdrawn on 11 May 2010, this Committee formally reinstated such license as at the date of this hearing, 25 May, 2010.

[22]      Taking all the above matters into account we were satisfied that an appropriate penalty in this case was a suspension of Miss Burgess’ licence for a period of 6 weeks.  This suspension is to take effect as from the date of the issue of the “License Withdrawal Notice” on 11 May 2010, and is to end on 21 June 2010, both dates inclusive.  In addition Miss Burgess is fined the sum of $200-00.

[23]      Costs:    

            Mr McKenzie made submissions that NZTR was seeking costs of $150-00 in relation to this hearing, plus any costs incurred by the JCA.  Miss Burgess had no submissions to make with regards to costs.

[24]      We were satisfied that the costs sought by NZTR were moderate and reasonable, and there is an order that Miss Burgess pay $150-00 costs to NZTR.

[25]      We explained to Miss Burgess that she would also be required to pay a portion of the JCA costs, and there was an order she pay the sum of $225-00 to the JCA.

_______________                              __________________                   

J. M. Phelan                                         K. G. Hales

Chairman                                            Committee Member

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