Non Raceday Inquiry RIU v K Robinson – Written Decision dated 24 November 2016 – Chair Mrs N Moffatt

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hearing_title: Non Raceday Inquiry RIU v K Robinson - Written Decision dated 24 November 2016 - Chair Mrs N Moffatt

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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)

Simon Andrew Irving, Investigator

Informant

AND Kevin James Robinson, Trackrider NZTR

Respondent

Judicial Committee: Mrs N Moffatt (Chair), Mr T Utikere (Committee Member)

Appearing: Mr S Irving (informant) – Mr K Robinson (as the respondent)

Venue: Awapuni Racecourse

Date of Hearing: 19 November 2016

Date of Written Decision: 24 November 2016

DECISION OF JUDICIAL COMMITTEE

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

Information Number A4186

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 thereby liable to the penalty imposed pursuant to Rule 803(3) of the said rules.

[2] The rule reads as follows:

Rule 656(3) - “A rider or any other licensed holder who has carried out, is carrying out, or is likely to carry out, a safety sensitive activity at a race course, 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, artefacts or isomers.”

Penalty 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.

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

[4] Mr Irving tabled a signed authority from the Racing Integrity Unit (RIU) to proceed with the charge against Mr Robinson. Copies of the Information, the appropriate notice to the various parties, and the appointment of the Judicial Committee had previously been sent to all parties. Mr Robinson confirmed he had received and read all of the documentation.

SUMMARY OF FACTS BY RIU

[5] The respondent Kevin James Robinson is a Licenced Trackrider under the Rules of New Zealand Thoroughbred Racing. He is 54 years old and has been involved in the racing industry all his life as a former jockey and trackrider.

On Friday the 04th November 2016, officials from the Racing Integrity Unit conducted random drug testing at the Foxton Racecourse. Mr ROBINSON was one of the people randomly selected for testing and was served with the appropriate notice. Mr ROBINSON provided a urine sample at 8.58am which returned a non-negative indicative reading for THC (Cannabis). The sample was forwarded to the ESR for analysis.

When interviewed on the day, Mr ROBINSON explained that he had smoked half a ‘joint’ of cannabis the previous night with a friend.

On the 09th November the ESR confirmed that the urine sample provided by Mr ROBINSON was positive to cannabis at a THC Acid level of 270 ng/mL. On a scale of 15 – 300+ this reading is considered high.

Mr ROBINSON has no previous NZTR charges.

[6] When given the opportunity to address the committee, Mr Robinson told the Committee that he started his career as an apprentice jockey in New Zealand prior to spending 30 years working in Australia. He returned to Foxton 2 ½ years ago to be with his terminally ill mother and gained employment working on the Central Districts starting gates. Following his Mother’s death he looked after his father until recently when his father was placed into care. In order to meet the costs involved Mr Robinson returned to trackwork riding to supplement his income.

The night before being tested Mr Robinson had shared half a joint with a friend.

PENALTY SUBMISSIONS BY INFORMANT

[7] Mr Irving made the following submissions in regard to penalty.

1. Introduction

1.1 The respondent Kevin James ROBINSON is a Miscellaneous Class B (Trackwork Rider) Licence holder under the Rules of New Zealand Thoroughbred Racing (NZTR).

1.2 He is 54 years old and is a freelance trackwork rider at Foxton racecourse and a race day barrier attendant employed by RACE Inc.

1.3 He has been involved in the racing industry all his working life.

1.4 ROBINSON has admitted a breach of the Rules in relation to the positive drug test returned at the Foxton racecourse on the 04th November 2016.

1.5 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.

1.6 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.

1.7 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.

1.8 On this occasion Mr ROBINSON was trackwork riding at the Foxton racecourse while the drug THC (Cannabis) was within his body.

1.9 It is submitted that a three month suspension from trackriding (backdated to the 05th November when he was ‘stood down’) and the cost of the ESR analysis of $187.50 (to the RIU) should be imposed.

2. Offending

2.1 The details of ROBINSON’S offending are contained in the Racing Integrity Unit Summary of Facts.

3. Penalty Provisions

3.1 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 12months;and/or

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

4. Sentencing Principles

4.1 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.

4.2 All four principles apply in this matter.

5. Precedents

5.1 The following are recent decisions involving trackwork riders:

• 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.

6. Aggravating Factors

6.1 ROBINSON has been involved in the racing industry for a many years and knows the importance of maintaining integrity in racing.

6.2 His recorded THC level of 270ng/mL is considered high (the range being between 15 and >300 ng/mL) and is consistent with his explanation of when he last smoked Cannabis.

7. Mitigating Factors

7.1 ROBINSON has been fully co-operative with RIU staff throughout the investigation and prosecution process.

7.2 He has admitted the breach at the earliest possible stage and has shown remorse for his actions.

8. Conclusion

8.1 The RIU therefore seek a three month suspension from trackriding (backdated to the 05th November when he was ‘stood down’) and costs of the ESR analysis of $187.50 to the RIU.

[8] Mr Irving also told the committee that everyone within the racing fraternity at Foxton was very surprised to hear that Mr Robinson had returned a positive drug test suggesting this was completely out of character for him.

[9] Mr Irving said, due to similar levels of drug detected, the previous case of RIU v C Hollis was the closest precedent to Mr Robinson’s case. Mr Hollis was suspended for a 2 ½ month period and ordered to pay ESR analysis costs.

[10] In response to questions from the Committee Mr Irving said the level of drug detected was the predominant factor the RIU took into account when making penalty submissions. He said higher drug readings generally attracted longer suspensions. Mr Irving said there were many factors that could affect an individual’s drug level and in Mr Robinson’s case his explanation of smoking the night before was consistent with the ESR reading.

[11] Mr Irving said the inference was that at that level of reading the person could still be affected the following morning however when Mr Irving spoke with Mr Robinson immediately following the drug testing he did not notice any impairment.

PENALTY SUBMISSIONS BY RESPONDENT

[12] Mr Robinson said he was not a regular user of cannabis but had shared a joint with a friend the night before being tested. He tabled two character references from local trainers attesting to his good character.

[13] Mr Robinson said he had never been charged with any drug offence while working in the racing industry in Australia and was adamant he would never be charged again. He produced a certificate confirming a negative drug test dated 18/11/16.

[13] Mr Robinson outlined the financial details of his elderly father’s care and said the only reason he returned to trackwork riding was to enable him to meet the extra financial obligations. His only other income was working as a barrier attendant therefore any suspension of his trackwork licence would have a major impact on his ability to support his father.

DECISION

[14] The JCA Penalty Guide for Judicial Committees does not provide a starting point for breaches of this rule. All cases are fact dependent.

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

[16] It is imperative for the integrity of racing, and the safety of all those involved in the industry, that riders remain drug free. Mr Robinson has an obligation to present free from any influence of drugs.

[17] During submissions on penalty the RIU put forward four recent decisions involving trackwork riders testing positive to cannabis and we had regard to all of these. Mr Irving identified RIU v C Hollis as being the closest to Mr Robinson’s case based on the level of cannabis detected; the premise being that higher THC readings equate to higher penalties. In the absence of expert evidence in relation to levels of THC present in Mr Robinson’s drug test and levels of impairment we do not accept this as a necessarily aggravating factor.

[18] In mitigation, the committee notes Mr Robinson’s admission of the breach, his genuine remorse and co-operation with the investigation process, and his clear record over a lifetime of working within the racing industry.

[19] We have also taken into account Mr Robinson’s financial situation.

[20] It is our opinion that a period of suspension is the most appropriate means to act as a deterrent on this occasion and, after considering all factors, the committee believes a six week period of suspension is appropriate.

PENALTY

[21] We reinstate Mr Robinson’s Class B Misc. Licence (Riding) as of November 5th 2016.

[22] Accordingly, Mr Robinson’s Licence is suspended for a period of 6 weeks from 5 November 2016 up to and including 17 December 2016.

COSTS

[23] The Respondent is ordered to pay costs of $187.50 to the RIU for sample analysis costs.

Nicki Moffatt              Tangi Utikere

Chair                         Committee Member

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