Non Raceday Inquiry NZTR v SJ Yetton 25 September 2009 decision

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hearing_title: Non Raceday Inquiry NZTR v SJ Yetton 25 September 2009 decision

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Decision:

NZTR v SIMON JOHN YETTON

NON RACEDAY JUDICIAL COMMITTEE: Mr BJ Scott Chairman,  Mr JN Holloway

PRESENT:    Mr Bryan McKenzie, Racecourse Inspector
                        Mr John Oatham, Senior Stipendiary Steward
                        Mr SJ Yetton

DECISION OF JUDICIAL COMMITTEE

25th September 2009

1. NATURE OF THE CHARGE

1.1 Mr Yetton is charged that on Monday the 14th day of September 2009 at the Te Aroha Racecourse, being a Rider who having been requested by Stipendiary Steward to supply a sample of his urine to an authorised person, refused to comply with that request and thereby did commit a breach of Rule 528 (2) of the New Zealand Rules of Racing and that he is thereby liable to a penalty or penalties which may be imposed upon him pursuant to provisions of Rule 1003 (1) of the said Rules.

NZTR v SIMON JOHN YETTON

NON RACEDAY JUDICIAL COMMITTEE: Mr BJ Scott Chairman, Mr JN Holloway

PRESENT:   Mr Bryan McKenzie, Racecourse Inspector
                       Mr John Oatham, Senior Stipendiary Steward
                       Mr SJ Yetton

DECISION OF JUDICIAL COMMITTEE

25th September 2009

1. NATURE OF THE CHARGE

1.1 Mr Yetton is charged that on Monday the 14th day of September 2009 at the Te Aroha Racecourse, being a Rider who having been requested by Stipendiary Steward to supply a sample of his urine to an authorised person, refused to comply with that request and thereby did commit a breach of Rule 528 (2) of the New Zealand Rules of Racing and that he is thereby liable to a penalty or penalties which may be imposed upon him pursuant to provisions of Rule 1003 (1) of the said Rules.

1.2 Rule 528 (2) provides: “Every Rider or Stablehand who, having been required by Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, breath, urine, saliva or sweat (or more than one (1) thereof) at a time and place nominated by the Stipendiary Steward or Racecourse Inspector or Judicial Committee who refuses or fails to comply with such a request commits a breach of this Rule.  Any breach of this Rule shall be reported to the Board of Thoroughbred Racing by the Registrar of the Judicial Committee which dealt with the breach and that the Board shall consider whether, in addition to any penalty imposed by the Judicial Committee the Licence or Certificate of a Rider should be cancelled or withdrawn under Rule 318 (1) of these Rules”.

1.3 Mr Yetton admitted the charge.  He further acknowledged that he had received a copy of Rules 528 (2) and 1003 (1) and that he understood those Rules.

2 FACTS

2.1 Mr McKenzie presented to this Committee a Summary of Facts which stated that on Monday the 14th of September 2009, NZTR Officials conducted random drug testing on a number of Trackwork Riders who were involved in riding horses at the Te Aroha Racecourse that day.  Mr Simon Yetton was one of those riders selected for testing and he was approached by Senior Stipendiary Steward Mr Oatham and verbally informed that he was required to undergo drug testing.  At the same time Mr Oatham personally handed to Mr Yetton a written notice to that affect.

2.2 At the time that he was served with the notice Mr Yetton displayed an obvious reluctance that he would comply with the request.  Mr Yetton subsequently arrived at the Jockey’s room at the Racecourse and spoke with Racing Inspector Mr McKenzie and Mr Oatham.  He was asked by Mr McKenzie if he had arrived to do his test and he told Mr McKenzie that he had not.

2.3 Mr Yetton then handed to Mr McKenzie the written notice that he had been given along with his NZTR Track Rider’s ID card.  He informed Mr McKenzie that he had never believed in the Drug Testing Regime and that he had no intention of giving a sample.

2.4 Mr Yetton advised Mr McKenzie that as he was now fifty (50) years of age and that it was getting harder for him each time he was dumped off a horse, he had intended giving the game away.  He advised that he was giving up riding from that point in time. 

2.5 Mr McKenzie then informed Mr Yetton that he could not be physically forced to take the test but that his refusal would result in him being charged and probably disqualified which would bar him from being involved in any way with racing during such terms of disqualification.

2.6 Mr Yetton was again asked to undergo the test and again refused and then left the area and the Racecourse.

2.7 On the same day the Track Riders Registration issued to Mr Yetton was withdrawn by NZTR by letter dated the 14th September 2009.  Mr McKenzie provided a copy of that letter to this Committee.

2.8 Mr McKenzie provided to this Committee written authority from the Chief Executive of NZTR to proceed with the charge against Mr Yetton.

2.9 Mr McKenzie advised this Committee that Mr Yetton was sorry for what he had done and he had co-operated with the subsequent enquiry and to his credit he had appeared at this Hearing and had pleaded guilty.

2.10 Mr McKenzie said that although Mr Yetton was recently a licensed Trackwork Rider he was formerly a licensed Trainer having held a permit to Train Licence in the 85/86 season and then again between 1991 and 1998.

Mr McKenzie advised this Committee that Mr Yetton had not previously appeared before the JCA on any charge similar to the one he was facing today. 

2.11 Mr Yetton for his part accepted his guilt and said that he had smoked Cannabis on the previous weekend.  He advised the Committee that he was frightened to take the test but he informed this Committee that he now realised the stupidity of his refusal and said that he wished he had taken the test.  He acknowledged to the Committee that he been wrong in refusing to take the test and provide a sample.

2.12 Mr Yetton also said that he was not against drug testing and he was very firm of the view that drugs should be eradicated from Racing although he was referring to serious drugs.

2.13 Mr Yetton said that although he acknowledged smoking Cannabis he had never touched any other drug.

2.14 Mr Yetton does accept that a refusal to take a drug test does raise a suspicion that there were more serious drugs in his system but he was adamant that he only smoked Cannabis.

3. PENALTY SUBMISSIONS BY NZTR

3.1 Mr McKenzie made written submissions on penalty.  The first submission was that Mr Yetton appears before this Committee on a serious charge pursuant to the NZ Rules of Racing.

3.2 Mr McKenzie referred to the Drug Testing Regime which had been put in place in an effort for the safety of riders and horses by protecting them from the dangers involved in riders being involved riding  horses whilst under the influence of illicit drugs.  The Drug Testing Regime is also aimed at protecting the integrity of the Thoroughbred Racing Industry and this sentiment is fully endorsed by this Committee.

3.3 Mr McKenzie stated that throughout the years there had been a consistent level of penalties sought by NZTR for breaches of drug rules involving riders and he pointed to the fact that licensed professional Riders who test positive for Cannabis has been given a three (3) month period of disqualification plus costs for some years.

Mr McKenzie did however advise that of recent times there had been three (3) cases involving the class A drug Methamphetamine which is commonly known as P.

3.4 As part of his submission Mr McKenzie also said that several years ago and up until 2007 there were several cases whereby Riders who had failed to attend the drug testing station and had done what could colloquially be described as a “runner”, had all been disqualified for three (3) months which was the same as a licensed rider testing positive to Cannabis.

3.5 Mr McKenzie also advised this Committee that as a matter of policy NZTR does not treat Trackwork Riders the same as licensed Professional Jockeys.  NZTR takes the view that a professional Licensed Rider has a far greater responsibility and liability than a Trackwork Rider.

3.6 Mr McKenzie submitted that Mr Yetton by his actions on the day and refusing to comply with the request to provide a sample of his urine had placed himself in a very invidious position.  He also submitted that Mr Yetton had not assisted his position by his statement that he does not believe in the Drug Testing Policy.

3.7 Mr McKenzie pointed to the fact that if Mr Yetton had tested positive for only Cannabis then in terms of the current Policy he would be facing a one (1) month suspension of his Trackriding license.

3.8 Mr McKenzie further submitted as follows:

(a) That Mr Yetton by his refusal should be treated and penalised on the same basis as if he was a licensed Professional Rider.

(b) By his refusal Mr Yetton had placed himself in a position whereby NZTR must seek a period of disqualification.  His refusal also leaves him in a position whereby NZTR submits that it is reasonable to infer that his refusal was because he knew he had an illicit substance in his body.

(c)  It was further submitted by NZTR that the only position to be taken in assessing the type of drug he could be penalised for is that of a class A substance.

3.9 Mr McKenzie also submitted to this Committee that it should be mindful of the principals of sentencing as set out by Justice Gendall in the 1994 case of NZTR v P. 

 Mr McKenzie submitted that the deterrent aspect referred to by Justice Gendall is the most important and further he said that a very strong message must be sent to all industry participants who are subject to the Drug Testing Rules that failure to comply with those Rules will be met with severe penalties.  It was his further submission that any lesser approach could seriously undermine the integrity of the Drug Testing Regime.

3.10 Mr McKenzie submitted that a penalty of nine (9) months disqualification should be imposed on Mr Yetton and he also asked for costs of $200.00 for NZTR.

4. PENALTY SUBMISSIONS SUBMITTED BY MR YETTON

4.1 Mr Yetton readily acknowledged his guilt and he again told this Committee that he realised the stupidity of his actions.  He of course now realises that if he had only Cannabis in his system then he would have been facing a much lesser penalty and he realised that his refusal to take the test put him in a different category of Defendant.

4.2 Mr Yetton said that he has a lovely partner and three (3) children and he lives on an establishment adjacent to Te Aroha Race Track which is owned by his mother.

4.3 Mr Yetton said that he understood Mr McKenzie’s submissions and he accepts that there would be a suspicion that he had taken other drugs and that is the reason for his refusal to take the drug test.  He did say however that he was totally against serious drugs in Racing and he was supportive of the Drug Testing Regime and he regretted the comments that he had made on the day that he had refused the test.

4.4 Mr Yetton accepts that a period of disqualification would be imposed on him and he was advised of he effects of disqualification under the NZ Rules of Racing.

4.5 Mr Yetton had advised this Committee of his contribution to racing over many years.

4.6 Mr Yetton further acknowledged that any penalty imposed on him should act as a deterrent to other people involved in the industry and he is happy for that to happen.

5. DECISION AND PENALTY

5.1 Mr Yetton had not appeared before the JCA on this type of charge before and at his age this is a good record.

5.2 Mr Yetton’s attitude towards Cannabis does cause us some concern.  He tells us that he is totally against serious drugs and that he is supportive of the Drug Testing Regime but he does not appear to see the need for testing for Cannabis.

 Although Cannabis is not a class A drug the integrity of Racing relies among other things upon participants in the Industry both human and equine being drug free.

5.3 This Committee is conscious of the need to deter persons licensed under the Rules of Racing from using prohibited drugs.  Persons who use drugs not only put themselves at risk but also horses and participants in the industry.  This Committee is also aware of the sentencing principles stated by Mr Justice Gendall in the 1994 decision of NZTR v P.  It is clear that any penalty should not only reinforce the potentially serious nature of the offending but should also be a deterrent to others.

5.4 Mr McKenzie has asked for Mr Yetton to be disqualified for nine (9) months under the NZ Rules of Racing.  He points to the fact that although this charge is a result of a refusal to submit to a drugs test it should be treated in the same manner as a positive class A drugs test.

5.5 Mr Yetton for his part accepts that there will be a period of disqualification imposed in upon him and said that a period of nine (9) months disqualification made common sense.  He accepted that there could be suspicion that he had taken more serious drugs and he accepted the need for any sentence to be a deterrent to others.

5.6 This Committee referred to the JCA penalty guide and expresses some concern that suggested penalties for breaches of Rule 528 (2) should be considerably less than those for breaches of Rule 528 (1).

 It is this Committee’s view that it clearly would not have been intended under the JCA guide lines that those who refuse to supply a sample for drug testing should have an advantage over those who do provide a sample and in the latter case are therefore subject to Rule 528 (1).
 The increase in the use of more serious drugs by Riders means that any orders made pursuant to Rule 528 (2) should contain a strong deterrent element.

5.7 Rule 1003 (1) does allow this Committee to impose a considerable range of penalties and in view of the fact that we see a need to deter others from refusing to submit to a drug test we believe that any penalty must be considerably greater than that set out in the JCA guide lines.

5.8 In Imposing penalty therefore we take into account the submissions of both parties and the co-operation of Mr Yetton and his record but we are also mindful of his attitude towards Cannabis and the need for there to be a deterrent.

5.9 We therefore order that Mr Yetton be disqualified in terms of the NZ Rules of Racing from the 25th of September 2009 up to and including the 25th of May 2010.  In addition there will be orders for costs of $200.00 payable to NZTR and $200.00 payable to the Judicial Control Authority.

       
BJ Scott               JN Holloway
Chairman            Committee

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hearing_type: Old Hearing

Rules: 318.1, 528.1, 528.2, 1003.1

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