Non Raceday Inquiry RIU v K J Riddell – Decision dated 20 June 2016 – Chair, Mr S Ching

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hearing_title: Non Raceday Inquiry RIU v K J Riddell - Decision dated 20 June 2016 - Chair, Mr S Ching

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BEFORE A JUDICIAL COMMITTEE

HELD AT RANGIORA

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A5028

BETWEEN K R WILLIAMS, Racing Investigator for the Racing Integrity Unit

Applicant

AND K J RIDDELL, Licenced Junior Horseman

Respondent

Judicial Committee: S C Ching, Chairman - R G McKenzie, Committee Member

Present: K R Williams, Racing Investigator (for the Racing Integrity Unit)

Mr K J Riddell, the Respondent

Mr A Stuart, Licenced trainer

Mr S Renault, Stipendiary Steward, the Registrar

Date of Hearing: 19 June 2016

Venue: Rangiora Racecourse, Christchurch

Date of Decision: 20 June 2016

DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A5028 alleges that on the 29th day of May 2016, Kevin Joseph RIDDELL being the holder of a Junior Horseman’s licence issued under the New Zealand Rules of Harness Racing, having been required under Rule 226(2)(d) by Racecourse Inspector Mrs Williams to supply a sample of his urine to the authorised person, Ms Giller (TDDA), which was found upon analysis to contain the controlled substance THC acid at a level of 130ng/ml, (cannabis), as defined in the Misuse of Drugs Act, 1975. The respondent is alleged to have thereby committed a breach of Rule 512(1) of the New Zealand Rules of Harness Racing and is liable to the penalties that may be imposed on him pursuant to the provisions of Rule 1003(1)(a), (b) and (c).

The Plea

[2] The information was served on Mr Riddell at 1043 hours on 9 June 2016 at the Rangiora Racecourse. Mr Riddell had signed the Statement by the Respondent on the information form indicating that he admitted the breach.

[3] Mr Riddell was present at the hearing of the information and he confirmed that he admitted the breach and also that he understood the Rule he was being charged with. Mr Riddell was assisted at the hearing by Licenced trainer, Mr A Stuart.

[4] The charge was found proved accordingly.

The Rule

[5] Rule 512(1) provides as follows:

Every horseman commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply 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, artefacts or isomers.

Facts

[6] Mrs Williams produced documentation dated 7 June 2016, from the General Manager of the RIU, Mr M Godber, authorising Mrs Williams pursuant to Rule 1108(2), to lodge the information against Mr Riddell.

[7] Mrs Williams presented the following Agreed Summary of Facts:

1. The respondent Kevin Joseph RIDDELL currently holds a Junior Horseman’s licence under the Rules of Harness Racing New Zealand. Mr Riddell first held a Trial’s Horseman’s licence in 2009/2010 and has had a Junior Horseman’s licence since 2012/2013.

2. On the 29th May 2016 at the Rangiora HRC meeting Mr Riddell was the listed driver in Race 2 for the trotter MR PRESTON trained by Mr B Heron. The programmed start time for Race 2 was 12.35pm.

3. A number of drivers were selected for alcohol and/or drug testing at this meeting.

4. Mr Riddell was served with a Drug Testing Notification Form by Racecourse Inspector Mrs Kylie Williams at 11.30am and he was alcohol tested at this time. He recorded a “0” level for alcohol.

5. Mr Riddell asked if he could supply his urine sample after he had driven. Mr Riddell was questioned by Mr Scott Wallis, Stipendiary Steward, and Mrs Williams with Mr Riddell confirming that there may be an issue with a urine sample as he had used Cannabis in the last month. Mr Riddell was advised that due to the concerns raised that he would be required to provide a sample before the race or he would be stood down by the Stipendiary Stewards under Rule 211(1)(d).

6. Mr Riddell supplied the required urine sample, U276149, to the authorised agent Ms Giller from The Drug Detection Agency (TDDA) at 11.43am.

7. Ms Giller, TDDA, advised by telephone that Mr Riddell’s sample showed a non-negative result for THC (cannabis).

8. Ms Giller and Mr Riddell were interviewed at 11.50am and Mr Riddell was advised that the sample had returned a non-negative to Cannabis and the sample was to be forwarded to ESR for analysis. Mr Riddell was advised that he was stood down from driving at the race meeting.

9. On the 2nd of June 2016 TDDA forwarded the confirmation from ESR that Mr Riddell’s sample U276149 was Positive for THC Acid with a level of 130ng/ml.

10. Mr Riddell was issued with a written notice on 3rd of June 2016 advising him that his Junior Horseman’s licence was automatically suspended under Rule 514(2)(b) and that he will be required to produce a clear sample before being able to drive at any race meeting, trial or work out under rule 514(2A).

Informant’s Penalty Submissions

[8] Mrs Williams presented the following submissions in relation to penalty:

1. Mr Riddell has pleaded guilty at the first opportunity to a charge of a breach of Rule 512(1) for supplying a sample of his urine which was found upon analysis to contain the controlled substance THC acid (cannabis) at a level of 130ng/ml.

2. Mr Riddell has not previously been charged with a breach of this rule.

3. The purpose of the drug testing rules is to enable random testing to be carried out at any trial, race meeting or public training track at any time to ensure that drivers drive drug free. The safety and welfare of both drivers and horses is paramount. Testing has been conducted for a number of years and drivers are aware of their obligations under the rules to present themselves free of the influences of any drugs.

4. Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975.

5. The penalty provisions that apply in this case are outlined in section 1003 (1)
1003 (1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:

(a) a fine not exceeding $10,000.00; and/or

(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c) disqualification for a period not exceeding 12 months.

6. Sentencing Principles -

The four principals of sentencing can be summarised briefly

• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that 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 like offenses.

• 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.

The first three principles are particularly important here.

7. Relevant Precedents –

In addition to the sentencing principles the Judicial Committee should have regard to relevant precedence in Harness Racing.

R.I.U v N Bishop - 1 August 2012

Subject: Junior Horsewoman – controlled substance THC acid (Cannabis) 300ng/ml – suspended for 6 months, costs $397.21. Extract from JCA decision: “The use of drugs seriously impugns the integrity of racing, and in particular, the safety of horsemen and women and horses being driven at race meetings.”

R.I.U. v I J Brownlee - 24 December 2015

Subject: Open Horseman - controlled substance THC acid (Cannabis) 73ng/ml – second offence suspended for 9 months, costs $187.50. Extract from JCA decision: “Both the informant and respondent made reference to the relatively low level of THC referred to in the Analyst Certificate (73ng/ml). We have not placed too much weight on this submission given that according to the Analyst Certificate “THC Acid levels do not indicate impairment or when or how much cannabis is used. …and send a clear message to other industry participants that there is no place for illegal substance use within the industry.”

R.I.U. v G J Thomas - 17 July 2014

Subject: Open Horseman - controlled substance THC acid (Cannabis) 220ng/ml – suspended for 5 months, costs $172.20. Extract from JCA decision: “There is a need to hold Mr Thomas accountable and to denounce his actions. There is also a need to impose a penalty that emphasises general deterrence.”

8. Aggravating Features –

Mr Riddell is well aware that the use of Cannabis is prohibited under the rules but had knowingly used it in the previous month.

9. Mitigating Factors –

Mr Riddell has been very forthcoming during the enquiry and admitted the breach at the first opportunity.

10. Conclusion –

The Racing Integrity Unit seeks a suspension of Mr Riddell’s Junior Horseman’s Licence for a period of 6 months. Mr Riddell has had 22 drives since 2012/13, 3 drives so far this season, 3 last season, 6 the previous season and 10 in his first season of driving. Given the number of drives that would be taken into account we believe that 6 months is a starting point for a suspension for a Junior Horseman.

11. The R.I.U. are seeking costs of $187.50, being the cost of the sample analysis.

Submissions of the Respondent

[9] Mr Riddell stated that he was an alcoholic and obviously can’t drink alcohol. He said that was why he was taking the Class C Drug, Cannabis and he had taken Cannabis with friends 2 weeks prior to the meeting thinking that it would be out of his system by the time he was tested. In answer to a question from the Committee, Mr Riddell stated that he wasn’t a regular user of Cannabis but that he had lost 13kgs since commencing using the drug. He said that he wasn’t taking Cannabis as an alternative to alcohol as Cannabis was a lot better for you than alcohol.

Mr Riddell stated that drivers were allowed to drive with up to 100ml of alcohol per litre of breath and when he had been tested blew 77ml per litre of breath, whereas you can’t have “a bit of weed” 2 weeks before the race day. He asked who made the rules up as he thought they were unfair.

Mr Riddell stated that he realises that he cannot partake in Cannabis anymore and has given up using the drug. In answer to a further question from the Committee, Mr Riddell stated that he was not undertaking any official rehabilitation programme to help him through this.

[10] Mr Stuart stated that Mr Riddell has obviously realised that what he did was wrong and was making an effort to change his lifestyle. He said Mr Riddell was more than happy with a suspension of his horseman’s licence but if he was able to provide a clear drug test, asked if he was able to then drive track work, at workouts and trials.

Penalty submissions of the Respondent

[11] Mr Riddell stated that he would like to return to being able to drive track work, at work outs and trials and accepted that a term of suspension of his race day driving licence was inevitable. He submitted that a 3-month suspension would be an appropriate penalty in his case.

[12] Mr Stuart stated that Mr Riddell has just signed a contract with him in regards to his future employment which states no drugs or alcohol in the workplace. Mr Stuart said that Mr Riddell has shown every intention of turning his life around and that was the main reason for him coming back to work for him. He stated that he some ability as a driver and if he was able to drive at the workouts and trial it would assist in his rehabilitation.

Reasons for Penalty

[13] The relevant penalty Rule is 1003(1) which provides:

1003 (1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:

(a) a fine not exceeding $10,000.00; and/or

(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c) disqualification for a period not exceeding 12 months.

[14] In determining penalty the Committee took into consideration all aggravating and mitigating factors. An aggravating factor in this case is Mr Riddell’s knowledge that the use of Cannabis is prohibited under the rules but had knowingly used it in the previous month. This was realised by the fact that he asked if he could take his urine test after he had taken his drive on 29 May obviously aware that it was very likely to show positive to cannabis. Another aggravating factor was Mr Riddell’s reading of 130ng/ml which we determined was mid-range and considerably higher than Mr R. but not as high as Bishop and Thomas. At no stage during the hearing did Mr Riddell show any remorse or acceptance of his offending, instead arguing that the rules were wrong or unfair, which we determined was a further aggravating factor.

[15] Mr Riddell’s frank admission of the breach and his clear record in regard to this Rule in conjunction with his cooperation during the enquiry are the only mitigating factors.

[16] The Committee has also taken into consideration Mr Stuart’s submissions and role in taking on Mr Riddell as an employee and assisting him with his “rehabilitation” following the breach.

[17] Previous penalties imposed for drivers as submitted by Mrs Williams have been some assistance in determining penalty in this case.

-RIU V N BISHOP- In this case Ms Bishop was tested race day. She was a Junior Driver at the time and had only 6 career drives at the time of her suspension. Her reading was 300mg/ml (Cannabis). Suspended 6 months. Of note Ms Bishop’s breach was despite a previous conviction in the criminal court for possession of cannabis.

-RIU V I J BROWNLEE- In this case Mr Brownlee was an open horseman and was tested race day. His record shows that he drove on 59 occasions the previous season to his suspension and since his suspension has only driven race day on 36 times. Reading 73 ng/ml (Cannabis) but second offence. Suspended 9 months.

-RIU V GJ THOMAS – In this case Mr Thomas was an open horseman and was tested race day. His record shows that the previous season (2013) to his suspension he drove on 32 occasions with the season (2012) before that he had 62 drives. He has not held a licence since his suspension. His reading was 220/ng/ml (Cannabis). Suspended 5 months.

[18] The Committee were also able to refer to a recent decision which was of assistance in setting penalty:

-RIU V MR R- In this case Mr R was an Amateur Horseman and was tested race day. His record showed a career total of 89 drives with preceding seasons showing 22, 17, 18 and 22 drives respectfully. His reading was 41ng/ml (Cannabis). Suspended 5 months.

[19] Sentencing Principles as already noted above must be taken into account -

The four principals of sentencing can be summarised briefly

• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that 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 like offenses.

• 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.

[20] As in the Bishop and Thomas cases the Committee needed to hold Mr Riddell accountable and denounce his actions as well as imposing a penalty that serves as a general deterrence. We also needed to enforce that the use of drugs seriously impugns the integrity of racing, in particular the safety of horsemen and horsewomen as well as horses, at track work, trials and race meetings. The Committee, in setting a meaningful penalty, with the sentencing principles in mind, have adopted a starting point of a 5-month suspension in this case which is consistent with the most recent of cases being a first offence, an admission of the breach and similar opportunities to drive as has Mr Riddell. Aggravating factors, as noted in Paragraph [14], we determined, commanded an uplift in penalty, which we set at 2 months, taking the level of penalty to 7 months. We were however able to give Mr Riddell a discount for his admission of the breach and clear record which we set at 1 month. We therefore determined that a 6-month suspension is an appropriate penalty in this case.

[21] At the time of the hearing the Committee also ordered that if Mr Riddell is able provide a clear drug test to the RIU, his mandatory stand down under Rule 514(2) (b), currently in place following his failed drug test on 29 May 2016, be lifted under Rule 514(2A), with just his race day licence under suspension.

Penalty

[22] Accordingly Mr Riddell’s Junior Horseman’s licence is suspended for a period of 6 months backdated from 3 June up to and including 3 December 2016.

Costs

[23] The only costs sought by the RIU are awarded, for the ESR analysis of the sample, being $187.50.

[24] The hearing of the charges took place on a race day and, in the circumstances, no order for costs is made in favour of the Judicial Control Authority.

S C Ching        R G McKenzie

Chair               Committee Member

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