Non Raceday Inquiry RIU v B Peta 30 September 2013 – Decision dated 3 October 2013

hearingid: 1728dd9ea4edb8d5530bddb17e18c817

informantnumber: A2859

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decisiondate: 09/10/2013

hearing_title: Non Raceday Inquiry RIU v B Peta 30 September 2013 - Decision dated 3 October 2013

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Decision:

BEFORE THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND BRIAN EDWARD PETA

Respondent

Judicial Committee: Mr T Utikere, Chairman) - Mrs N Moffatt, Committee Member

Appearing: Mr R Carmichael (for the informant) – Mr B Peta (as the respondent)

Registrar: Mr R Bevege

Venue: Stewards Lounge, Awapuni Racecourse, Palmerston North

Date of Hearing: 30 September 2013

Date of Written Decision: 3 October 2013

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DECISION OF JUDICIAL COMMITTEE

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[1] Mr Peta appears before this Judicial Committee on the following charge:

Information Number A2859

THAT on the 20th day of August 2013 at Foxton Racecourse, Brian Edward Peta committed a breach of the provisions of Rule 656(3) of the Rules of Racing in that, being the holder of a Class A Misc. Licence (riding), and being required by a Racing Investigator to supply a sample of his urine, such sample was found upon analysis to contain a controlled drug as defined in the Misuse of Drugs Act 1975, namely THC Acid (Cannabis); and that Brian Edward Peta is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 803 of the Rules of Racing.

[2] The rule reads as follows:

Rule 656 (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.”

[3] Mr Peta confirmed that he understood Rule 656(3) and that he admitted the charge. We thus find the charge proved.

[4] Mr Carmichael tabled a signed authority from the Racing Integrity Unit (RIU) to proceed with the charge against Mr Peta; however this was defective as it had an incorrect date and location within it. Mr Peta acknowledged that this was purely an administrative error and did not wish to contest this. This defect was corrected and a fresh signed authority from the RIU was furnished to the committee. Copies of the Information, the appropriate notice to the various parties, and the appointment of the Judicial Committee were also tabled.

FACTS

[5] A précis of the relevant aspects, as they relate to the charge before this committee, follows:

[6] Mr Peta is aged 57 years. He has been riding trackwork at Foxton for about 30 years. He is the holder of the appropriate Rider Licence, issued by New Zealand Thoroughbred Racing.

[7] On 20 August 2013 Mr Peta was one of a number of riders selected to be drug tested during routine trackwork at Foxton Racecourse. A copy of the appropriate Notice was produced as Exhibit 6.

[8] The substance testing of Riders is authorised pursuant to Rules 104, 208, 314 and 656 of the Rules of Racing. A copy of those rules was produced as Exhibit 7.

[9] The conduct of the substance testing at Foxton was carried out by Anthony Hopping (NZDDA), an Authorised Person within the meaning of the Rules of Racing.

[10] Mr Peta supplied a urine sample “that was within the required temperature range”. An indicative test carried out by the Authorised Person showed the presence of THC Acid (Cannabis). The completed NZDDA forms were produced as Exhibit 8.

[11] Upon being notified of the indicative test Mr Peta immediately left the testing area, and without signing or witnessing the packaging procedure. However he has since admitted that he had used Cannabis in the days preceding the test and has apologised to the Racing Investigator for his actions.

[12] Notwithstanding Mr Peta leaving the testing area, the completed sample was correctly packaged and sealed in the presence of the Racing Investigator and forwarded by courier to the ESR Laboratory where it was received on Wednesday 21 August 2013. The completed ESR Drug Testing Form was produced as Exhibit 9.

[13] On 23 August 2013 written advice was received from the ESR Laboratory confirming that the sample obtained from Mr Peta at Foxton on 20 August 2013 contained THC Acid (Cannabis) at a level of 79ng/ml. A copy of the Drug Testing Report was produced as Exhibit 10.

[14] THC Acid (Cannabis) is a Class C Controlled Drug within the meaning of the Misuse of Drugs Act 1975. It is described as having “mild to moderate analgesic effects”. The confirmed presence of THC Acid (Cannabis) in a Rider sample is, prima facie, a breach of the Rules of Racing.

[15] The appropriate Stand Down Notice (Rule 657) was served upon Mr Peta at Foxton 28 August 2013 and was produced as Exhibit 12.

[16] When given the opportunity to seek clarification on any matters raised by the Informant, Mr Peta identified that the summary identified the THC Acid reading as 79ng/ml, which did not align with the ESR Certificate of Analysis which identified the level as 57ng/ml. Mr Carmichael accepted this sought for the summary to be amended to reflect the correct level as 57ng/ml.

[17] When given the opportunity to address the committee, Mr Peta submitted that he worked for the Central Districts starting gates, and four days before he was tested he was at a local Marae for a friend’s Tangi. While he was at the Marae he stated that there was a lot of cannabis being smoked in the areas where he was working. He believed that this passive inhalation was why he returned a positive test as a reading of 57ng/ml was not a very high reading. He was also in receipt of a petition regarding safety at the Foxton track; he believed this demonstrated his concern for safety issues. Mr Peta had also brought character references from 1999-2010 from those involved in the industry, to attest to his personal character. He concluded by submitting that he had not smoked cannabis but accepted that his urine sample had tested positive to the drug test, and he accepted that. He stated that he was very sorry for putting the racing industry into disrepute by returning a positive test.

[18] In response to a question from the committee, Mr Carmichael submitted that how the cannabis got into Mr Peta’s system was irrelevant as the bottom line was it had exceeded the level; with the usual level of passive inhalation of cannabis being 15ng/ml. He submitted that it could therefore be concluded that this level was indicative of something more than by passive means.

PENALTY SUBMISSIONS BY INFORMANT

[19] Mr Carmichael advanced the following submission points as to penalty:

[20] The use of Controlled Drugs, as defined in the Misuse of Drugs Act, by Riders engaged in races, trials or trackwork riding seriously impugns the integrity of racing and, more particularly, the safety of Riders. The purpose of the rules in relation to testing is therefore quite plain. Riders well know, or ought to know, that a positive test will result in either disqualification or suspension of the relevant Rider Licence. Riders in New Zealand have been subject to random testing since 1995 so they should be well aware that if they use Controlled Drugs they must also be aware that they will suffer the appropriate penalties.

[21] Since February 2010 there have been 19 prosecutions of riders for the use of Cannabis. Penalties that have been imposed range from 6 months disqualification to suspension of licence for 4 weeks suspension. A schedule of those penalties was produced as Exhibit 13.

[22] Ordinarily, and consistent with submissions in previous similar cases, the Informant would seek the suspension of a Trackwork Rider’s Licence for a period of three months.

[23] In support of that submission the Informant referred to the Judicial Committee decisions in the following similar cases involving Cannabis:

• RIU v O (2011)
• RIU v B (2012)
• RIU v G (2012)
• RIU v L (2013)
• RIU v T (2011)

[24] Mr Peta had admitted the offence at the first opportunity and had consented to the matter being initially determined by a Judicial Committee on a race day, thus minimising costs to the industry.

[25] It was the Informant’s submission that, as a starting point, Mr Peta’s licence should be suspended for a period of three months. The Judicial Committee would be entitled though to mitigate that penalty in terms of the preceding paragraph hereof and, by reference to the cases referred to. A suspension would also allow for Mr Peta to continue his work as a Starter’s Assistant.

[26] The Informant also sought costs of $172.21, being the cost of the sample analysis.

PENALTY SUBMISSIONS BY RESPONDENT

[27] Mr Peta stated that he had been involved in the industry for more than 30 years, and had held a trackwork rider’s licence for the last four or five seasons. His only income was from the duties he undertakes as a Starter’s Assistant, and he sought a penalty that would allow him to continue to do this. He identified a level of comfort with the RIU’s penalty submission but advised that he would accept whatever penalty the committee determined.

DECISION

[28] In coming to our decision we have carefully considered all of the submissions placed before us.

[29] Mr Peta has been a participant within the racing industry for more than 30 years, and is currently employed as a Starter’s Assistant. Therefore, he is acutely aware of the need for safety issues to be of paramount concern for those involved in all facets of the racing industry.

[30] In mitigation, the committee notes Mr Peta’s admission of the breach, his co-operation with the investigation process, and his conduct within the context of the hearing being of an exemplary nature. He also has an excellent record with regard to previous breaches of the rules. The committee also acknowledge, in mitigation, Mr Peta’s remorse for his actions and the potential disrepute this has caused for the racing industry.

[31] Such mitigation is somewhat balanced by the onus on Mr Peta to ensure he presents himself to ride in a drug-free state, and the safety concerns that this raises. We apply this in aggravation.

[32] In submitting on penalty, the RIU identified five previous decisions, all of which the committee acknowledge to have differing parallels with regard to mitigating and aggravating factors. In determining penalty we consider there to be direct parallels with RIU v B on this occasion.

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[33] We reinstate Mr Peta’s Class A Misc. Licence (Riding) as of 30 September 2013.

[34] Taking all matters into account we are satisfied that a period of suspension is the most appropriate means to act as a deterrent on this occasion and adopts a starting point of three months. After considering the aggravating and mitigating factors, the committee believes a two months period of suspension is appropriate.

[35] Accordingly, Mr Peta’s Licence is suspended for a period of two months from 28 August 2013 until 28 October 2013.

COSTS

[36] The Respondent is ordered to pay costs of $172.21 to the RIU for sample analysis costs. A further order for costs to the Judicial Control Authority in the amount of $200 is also made.

Tangi Utikere      Nicki Moffatt

Chairman            Committee Member

hearing_type: Non-race day

Rules: 656(3)

Informant: Mr R Carmichael - Racing Integrity Unit

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PersonPresent: Mr R Carmichael - for the Informant, Mr B Peta - as the Respondent

Respondent: Mr B Peta

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