Non Raceday Inquiry RIU v GP Heemi – Decision dated 24 November 2016 – Chair, Mr P Williams

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decisiondate: 28/11/2016

hearing_title: Non Raceday Inquiry RIU v GP Heemi - Decision dated 24 November 2016 - Chair, Mr P Williams

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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 Thoroughbred Racing

BETWEEN

RACING INTEGRITY UNIT (RIU) - Informant

AND

GEROME PIKILEE HEEMI - Respondent

Judicial Committee: Mr P Williams (Chairman), Mr T Castles (Committee Member)

Appearing: Mr Simon Irving, Investigator, as the Informant

Mr Gerome Pikilee Heemi, Class B Miscellaneous Trackwork Rider, as the Respondent

Venue: Palmerston North

Date of Hearing: 24 November 2016

Date of Decision: 24 November 2016

DECISION OF JUDICIAL COMMITTEE

1] Mr Heemi appears before this Judicial Committee on the following charge:-

THAT on the 04th November 2016 at Foxton Racecourse, having been required by a Racing Investigator to supply a sample of your urine in accordance with Rule 656(3) of the NZTR Rules of Racing, you provided urine which upon analysis was found to contain the controlled drug Cannabis as defined in the Misuse of Drugs Act 1975 AND THAT you are liable to the penalty imposed pursuant to Rule 803 of the said rules.

2] Rule 656(3) states: A Rider, or any other Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, who, having been required by a Stipendiary Steward or Investigator to supply a sample in accordance with this Rule must not have a 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] At the start of the hearing, Mr Heemi confirmed he understood the Rule under which he had been charged and also that he admitted the charge. He acknowledged all the relevant documents from the RIU had been disclosed to him and consented to them being admitted as evidence.

4] Prior to the hearing commencing Mr Irving produced a signed authority from the General Manager of the Racing Integrity Unit, Mr M Godber, dated 10 November 2016 authorising the filing of the Information pursuant to Rule 903(2)(d).

SUMMARY OF FACTS BY THE INFORMANT AND FOLLOW UP DISCUSSION

5] Mr Irving provided the following Summary of Facts:-

6] “The respondent Gerome Pikilee HEEMI is a Class B Miscellaneous (Trackwork Rider) Licensed person under the Rules of New Zealand Thoroughbred Racing. He is 29 years old and has been involved in the racing industry all his life, having held his track riders licence for three years.

7] On Friday the 04th November 2016, officials from the Racing Integrity Unit conducted random drug testing at the Foxton Racecourse. Mr HEEMI was one of the people randomly selected for testing and was served with the appropriate notice. Mr HEEMI provided a urine sample at 11.35am which returned a non-negative indicative reading for THC (Cannabis). The sample was forwarded to Canterbury Health Laboratories (CHL) for analysis.

8] When interviewed on the day, Mr HEEMI explained that he had smoked cannabis a couple of nights earlier with friends.

9] On the 09th November CHL confirmed that the urine sample provided by Mr HEEMI was positive to cannabis at a THC Acid level of 98 ng/mL. On a scale of 15 – 300+ this reading is considered low – mid range.

10] Mr HEEMI has no previous charges under the NZTR rules”.

SUBMISSIONS BY THE RESPONDENT AND FOLLOW UP DISCUSSION

11] Mr Heemi confirmed he did not disagree with anything in Mr Irving’s Summary of Facts.

12] He said a friend had recently passed away from cancer and during the weekend prior to being tested on 4 November 2016 he had been helping out the family at the funeral following which there had been a celebration. He said some people were “having a puff” on some marijuana and there was a lot of peer pressure for him to do likewise and he ended up doing so. He said there were no excuses for his actions which he regretted and he accepted full responsibility for what he had done.

13] Mr Heemi said riding track work was all he did. He said he rode work at both Levin and Foxton and rode up to 14 horses per day and had been previously involved in breaking-in horses and unraced 2 year olds. In addition he said he had done a lot of farm work educating horses prior to them entering a trainer’s stable.

14] He said he loved working with horses, had a partner and two daughters and a son on the way and he rode for them as well as himself.

DECISION

15] As Mr Heemi has admitted the breach the charge is found to be proved.

SUBMISSIONS ON PENALTY BY THE INFORMANT

Introduction

16] "The respondent Gerome Pikilee HEEMI is a Miscellaneous Class B (Trackwork Rider) Licence holder under the Rules of New Zealand Thoroughbred Racing. He is 29 years old and is a freelance track work rider. He has been involved in the racing industry all his working life.

17] Mr HEEMI has admitted a breach of the Rules in relation to the positive drug test returned at the Foxton racecourse on the 04th November 2016.

18] New Zealand Thoroughbred Racing commenced drug testing industry participants in 1995 and since then there has been growing awareness that there is an absolute obligation on riders to present themselves free from the influences of drugs. All riders are aware of the policy and the consequences should they not comply. The testing is conducted to maintain a safe and healthy workplace and to maintain the integrity of the industry. Historical penalties for breaches of the industry drug laws show some divergence dependent on the type of drug, the amount of the drug in the system and additional circumstances.

19] On this occasion Mr HEEMI was track work riding at the Foxton racecourse while the drug THC (Cannabis) was within his body.

20] It is submitted that a two month suspension from track riding (backdated to the 05th November when he was ‘stood down’) and the cost of the CSL analysis of $187.50 (to the RIU) should be imposed.

Offending

21] The details of HEEMI’s offending are contained in the Racing Integrity Unit’s Summary of Facts.

Penalty Provisions

22] The penalty provisions for this matter are contained under Rule 803(3):

Subject to Rule 803(2)(b), where any Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises commits or is deemed to have committed a breach of these Rules related to drugs or alcohol and a penalty is not provided elsewhere in these Rules for that breach, that Licenceholder committing the breach may:

(a) be disqualified for a period not exceeding 5 years; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and/or

(c) be fined a sum not exceeding $50,000,

Sentencing Principles

23] The four principles of sentencing can be summarised briefly:

• Penalties are designed to punish the offender for his / her wrong doing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence but the offender must be met with a punishment.

• In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences

• A penalty should also reflect the disapproval of the JCA for the type of behaviour in question

• The need to rehabilitate the offender should be taken into account.

24] All four principles apply in this matter.

Precedents

25] The following are recent decisions involving track work riders:

• RIU v T BISHOP (19.11.16) – Trackwork rider / Class C Trainer tested positive to Cannabis (30ng/mL) receiving a six week suspension and $187.50 costs.

• RIU v K ROBINSON (19.11.16) – Trackwork rider tested positive to Cannabis (270ng/mL) receiving a six week suspension and $187.50 costs.

• RIU v L S BURTON (23.09.16) – unlicensed Trackwork rider tested positive to Cannabis (30ng/mL) receiving a six week suspension and $187.50 costs

• RIU v H L BORROWS (14.12.2015) – Trackwork rider tested positive to Cannabis (no level detailed) receiving a two month suspension and costs of $187.50.

• RIU v C HOLLIS (17.01.2015) – Trackwork rider tested positive to Cannabis (210ng/mL) receiving a two and a half month suspension and costs of $187.50.

• RIU v B A SWINBURNE (02.04.2014) – Trackwork rider tested positive to Cannabis (73ng/mL) receiving a 5 week suspension and $200 fine.

Aggravating Factors

26] Mr HEEMI has been involved in the racing industry for several years and knows the importance of maintaining integrity in racing.

Mitigating Factors

27] Mr HEEMI has been fully co-operative with RIU staff throughout the investigation and prosecution process. He has admitted the breach at the earliest possible stage. His recorded THC level of 98ng/mL is considered low – medium (the range being between 15 and >300 ng/mL) and is consistent with his explanation of when he last smoked Cannabis.

Conclusion

28] The RIU therefore seek a two month suspension from track riding (backdated to the 05th November when he was ‘stood down’) and costs of the CSL analysis of $187.50 to the RIU".

29] After presenting his “formal submission” Mr Irving made further reference to the recent cases of Bishop and Robinson which also arose out of the RIU’s testing at Foxton on 4 November 2016. He said it was clear that the Committees hearing those two charges were not overly influenced by the difference in recorded THC levels – 30ng/mL and 270 ng/mL respectively and both received the same penalty – a suspension of 6 weeks. He accepted that whilst the RIU was submitting a penalty of 2 months was appropriate for Mr Heemi, given his relatively low reading of 98 ng/mL he accepted a lesser penalty may be imposed to be consistent with the other two cases. He also said that on the day Mr Heemi was tested he was “sober” and the amount of drug in his system would not have had any influence on his ability to ride track work.

SUBMISSIONS ON PENALTY BY THE RESPONDENT

30] Mr Hemi presented a letter of support from a person he rides regular track work for. He confirmed the payments he received for riding work was his only source of income and that he was also receiving a benefit from WINZ which varied depending on the amount earned each week from riding track work. He said his love of horses kept him in the industry even though the money was not great. He reiterated he was ashamed to be before the Committee and regretted the choices he had made that led to the charge being laid.

DISCUSSION AND PENALTY

31] The penalty provisions under Rule 803(3) state:

Subject to Rule 803(2)(b), where any Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises commits or is deemed to have committed a breach of these Rules related to drugs or alcohol and a penalty is not provided elsewhere in these Rules for that breach, that Licenceholder committing the breach may:

(a) be disqualified for a period not exceeding 5 years; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and/or

(c) be fined a sum not exceeding $50,000,

32] The JCA Penalty Guide does not provide a starting point for breaches of this particular Rule but makes reference to the penalties being “fact dependant”. It is therefore incumbent on the Committee to fully consider the specific circumstances of this case when assessing an appropriate penalty. The Committee notes, however, penalties that have been imposed for previous breaches of this Rule referred to by Mr Irving in his submissions. In particular, we note that two other Track work riders who also failed a drug test at the Foxton race course on 4 November 2016 – T Bishop and K Robinson -were each suspended on 19 November 2016 from riding track work for a period of 6 weeks. We also note that whilst submitting a 2 month period of suspension was an appropriate penalty, Mr Irving also understood if the Committee felt the need for some consistency with penalties imposed on two other track work riders who tested positive to cannabis on the same day at Foxton as Mr Heemi.

33] The committee has carefully considered all the evidence provided by both parties, the letter of support from Ms Mason and the submissions presented. Mitigating factors are that Mr Heemi admitted the breach and this was his first charge under this rule. It is also evident that he has been fully co-operative with the RIU throughout the investigation and has shown remorse for his actions.

34] However, the integrity of racing is always paramount and this was compromised on this occasion by the actions of Mr Heemi. A drug free environment is essential as the safety of other riders and horses is compromised when riders present themselves with any prohibited substance present in their system. Whilst Mr Irving commented that Mr Heemi was sober when tested on 4 November 2016 it doesn’t follow that was necessarily the case when he also rode track work on the day immediately following the funeral and celebration. This Committee accepts without reservation, however, that our decision today must be based only on the results of the testing undertaken on 4 November 2016.

35] After taking into account all the mitigating and aggravating factors above we believe a period of suspension is an appropriate penalty which we have decided on this occasion should be for a period of 6 weeks.

PENALTY

36] Mr Heemi was stood down from riding track work from Saturday 05 November 2016. The Committee re-instates Mr Heemi’s Track work riders licence from that date. The Committee further suspends Mr Heemi’s Track work riders licence from Saturday 05 November 2016 to Friday 16 December 2016 inclusive – a period of six weeks.

COSTS

37] The RIU has sought costs of $187.50 being the cost of the analysis undertaken by the CHL and Mr Heemi is ordered to pay $187.50 to the RIU. As this hearing was held on a race day there are no other costs payable to the RIU or the JCA.

Paul Williams        Tom Castles

Chairman             Committee Member
 

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