Non Raceday Inquiry – NZTR v W J McGowan – 3 May 2010 – Decision

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hearing_title: Non Raceday Inquiry - NZTR v W J McGowan - 3 May 2010 - Decision

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NZTR v WENDY JANE McGOWAN

JUDICIAL COMMITTEE DECISION

INFORMANT:  Mr BF McKenzie, Racecourse Inspector

DEFENDANT:  Ms Wendy Jane McGowan, Licensed Track Work Rider

ALSO PRESENT:  Mr JW McKenzie, Chief Racecourse Inspector

HEARING DATE:  3 May 2010

HEARING VENUE:  Te Rapa Racecourse

JUDICIAL COMMITTEE:  BJ Scott Chairman,  RM Seabrook

Ms McGowan appeared before the Committee to answer a charge filed against her by Racecourse Inspector Mr BF McKenzie such charge being pursuant to Rule 656(3) of the New Zealand Rules of Racing.

The charge read as follows:

“That on Monday the 19^th of April 2010 at Cambridge, being a rider who having being 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 provisions of Rule 803 of the said Rules.”

Rule 656(3) states:

“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, artefacts or isomers.”

Ms McGowan acknowledged that she had been served with the charge and at the time of service was also provided with copies of both of the above Rules and a notification of the time and date of Hearing and also a License Withdrawal Notice.

SUMMARY OF FACTS presented by Mr J McKenzie:

1.         Mr McKenzie presented to this Committee the appropriate Authority from NZ Thoroughbred Racing Inc to proceed with the charge against Ms McGowan.

2.         On Monday morning the 19^th April 2010, NZTR officials conducted drug testing procedures on a number of track work riders who were involved in riding horses at the Cambridge Jockey Club Training Centre that day.

3.         Licensed Track Rider Ms Wendy McGowan was one of those riders selected to undergo the testing.   She was handed a written request to that effect by a Stipendiary Steward.

4.         Ms McGowan later that morning presented herself to the drug testing station and there supplied to the authorised person a urine sample.   The appropriate documentation was produced to this Committee as an exhibit and was also acknowledged by Ms McGowan.

5.         The sample, along with all other samples taken that day, was forwarded to the ESR Laboratory in Wellington.   By Certificate dated the 21^st April 2010, the ESR declared that urine sample of Ms McGowan was a positive result for Cannabis.

6.         The ESR Certificate also recorded the confirmatory analysis level of THC Acid as being 29 nanograms per millilitre of urine.   A copy of the Certificate was produced to this Committee and acknowledged by Ms McGowan.

7.         On the 21^st April 2010 Ms McGowan was handed a copy of the ESR Certificate and also handed a Stand Down Notice in terms of Rule 657.   Copies of these were produced to the Committee and acknowledged by Ms McGowan.

8.         Ms McGowan is a single woman aged 26 years.   She is a licensed Class B Miscellaneous Track rider with NZTR.   She is currently employed full time in a local Cambridge stable.

9.         On the 2^nd January 2007, Ms McGowan appeared before the JCA and was find $200.00 after testing positive to Cannabis following drug testing at the Tauranga track in December 2006.

10.       Ms McGowan when asked by this Committee acknowledged that the facts as presented by Mr McKenzie were correct.

11.       Ms McGowan did not have anything further to say other than to acknowledge her mistake and that she has readily admitted the charge.

PENALTY SUBMISSIONS presented by Mr J McKenzie:

Mr J McKenzie submitted as follows:

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

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

(c)        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.

(d)        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.

(e)        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.

(f)         Ms McGowan has breached not only the Rules of Racing, but also the Criminal Law – Misuse of Drugs Act 1975.

(g)        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.

(h)        Ms McGowan has pleaded guilty and co-operated in every way after being requested to provide a sample and subsequent to the analytical result.

(i)         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.

(j)         Mr McKenzie said that this was Ms McGowan’s second appearance for the same offence and it was disappointing that she appears before the Committee today and this is a concern for her safety and that of others.   Mr McKenzie pointed out that Ms McGowan appeared before JCA Tribunal in 2007.

(k)        Mr McKenzie also said that Ms McGowan has agreed to undertake counselling and in that she will be supported by her Employer.   Mr BF McKenzie will also liaise with Ms McGowan’s Employer and from time to time check on Ms McGowan’s progress.

(l)         Mr McKenzie read and then presented to this Committee a letter of support from Ms McGowan’s Employer.

(m)       Mr McKenzie, in his submissions said that but for Ms McGowan’s total co-operation and the support of her Employer, a question would have to be asked as to whether she should remain in the Racing Industry.

(n)        Mr McKenzie said that Ms McGowan’s commitment to seek counselling is a factor that encourages NZTR to give her a second chance.   Her analytical reading was low but non the less a positive result.

(o)        Mr McKenzie submitted that he had been advised by Mr BF McKenzie that Ms McGowan had shown true remorse.

(p)        Mr McKenzie submitted that a penalty of a suspension for a period of not less than one month and a fine of $400.00 would be appropriate.   In addition he asked for costs of $150.00 for NZTR.

(q)        Ms McGowan did not make any submissions as to penalty but acknowledges her mistake.

PENALTY

The Committee carefully considered all of the evidence put before it as well as the penalty submissions presented to it.

The Committee advised Ms McGowan that she had not only let herself down but that in listening to the letter of support from her Employer she would have realised how she had let her Employer down.

The Committee is concerned that this is the second charge for the same offence being faced by Ms McGowan and she was advised that she needed to change her ways as far as use of drugs were concerned if she wished to remain in the Racing Industry.   It was pointed out to Ms McGowan that although Cannabis is not a Class A drug the integrity of Racing relies among other things upon participants in the Industry being drug free.   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 pointed out to Ms McGowan the safety aspects of track work riders under the influence of drugs.

It is noted that the Cannabis level is relatively low and Ms McGowan has readily admitted the charge, has shown remorse, has co-operated with the Racing Investigators and has the support of her Employer.   She is given credit for these.

This Committee is however concerned that this is Ms McGowan’s second charge in relation to Cannabis and the Committee can only draw the conclusion that Ms McGowan has not learnt from the first charge.   The Committee proposes to give Ms McGowan another chance today but has pointed out to her the dangers of her ever appearing before a JCA Committee again on a similar charge.

In view of the fact that Ms McGowan’s license was withdrawn on the 21^st of April 2010 this Committee formally reinstates her Track Work Riders License as at the 3^rd of May 2010.

The Committee is aware of the sentencing principles in the two previous cases referred to by Mr McKenzie.

The Committee in assessing penalty has taken all of the above factors into account and suspends Ms McGowan’s Track Work Riders License for six weeks from the 21^st of April 2010.   The suspension will conclude on the 2^nd of June 2010.   The Committee also imposes a fine of $400.00 on Ms McGowan and orders her to pay costs of $150.00 to NZTR and $200.00 to JCA.

BJ Scott                                                                       RM Seabrook

Chairman                                                                   Committee

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