Non Raceday Inquiry RIU v L Callaway – Reserved Decision on Penalty dated 13 June 2016 – Chair, Mr R McKenzie

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hearing_title: Non Raceday Inquiry RIU v L Callaway - Reserved Decision on Penalty dated 13 June 2016 - Chair, Mr R McKenzie

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BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information Number A5027

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND LEE CALLAWAY of Christchurch, Licensed Jockey (Class A)

Respondent

Date of Hearing: Friday, 10 June 2016

Venue: Riccarton Park, Christchurch

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

Present: Mrs K R Williams (the Informant)

Mr L Callaway (the Respondent)

Date of Decision: 13 June 2016

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY

THE CHARGE

[1] Information No. A5027 alleges that:

“On the 24th day of May 2016, Lee CALLAWAY being the holder of a Class A Jockey’s licence issued under the New Zealand Thoroughbred Racing Rules, having been required under Rule 656 (1) by Racecourse Investigator Mrs Williams to supply a breath sample, was found on analysis to exceed 100 micrograms of alcohol per litre of breath. Mr CALLAWAY’s readings were 185 and 161 micrograms of alcohol per litre of breath. The respondent is alleged to have thereby committed a breach of Rule 656 (4) of the New Zealand Thoroughbred Racing Rules and is liable to the penalties that may be imposed on him pursuant to the provisions of Rule 803 (3).”

[2] Mrs Williams presented a letter dated 29th May 2016 signed by Mr M R Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 903 (2) (d) authorising the filing of the information.

[3] Mr Callaway having admitted the breach, the charge was found proved.

THE RULES

[4] The relevant Rule is as follows:

656 (4) A Rider who rides or presents himself to ride a horse at a Racecourse, Training Facility or Trainer’s Premises must not have a breath alcohol level greater than 100 micrograms of alcohol per litre of breath.

SUMMARY OF FACTS

[5] Mrs Williams presented the following Summary of Facts:

1. The Respondent, Lee CALLAWAY, is a Class A (Jockey) Licence holder under the Rules of New Zealand Thoroughbred Racing. Mr Callaway has held a licence for 13 years since 2003.

2. On the 24th May 2016, jockey/trackwork rider testing was conducted at the Canterbury Racing – North Canterbury Trials at Rangiora Raceway. Nine riders were selected for testing for alcohol and/or drugs.

3. Mr Callaway was served with a Drug Testing Notification Form by Racecourse Investigator, Mrs Kylie Williams, at 1129hrs. Mr Callaway recorded a level of 189ug/L for alcohol when tested in the stabling area.

4. Mr Callaway was retested in the Stipendiary Stewards’ Room in the presence of witness Stipendiary Steward, Mr Jeff McLaughlin, and recorded a level of 185ug/L at 1132hrs.

5. Mr Callaway supplied a second witnessed level of 161ug/L at 1152hrs and was immediately stood down from riding at the trials and was issued a Prohibition Notice.

6. Mr Callaway was served with an Information alleging a breach of Rule 656 (4) on 2nd of June 2016 and admitted the breach.

7. Mr Callaway has not previously been charged with a breach of this rule.

PENALTY SUBMISSIONS OF INFORMANT

[6] Mrs Williams presented the following Penalty Submissions:

1. Mr Callaway is a Class A (Jockey) Licence holder and has pleaded guilty to a breach of Rule 656 (4) for supplying a breath sample which was found upon analysis to exceed 100 micrograms of alcohol per litre of breath. Mr CALLAWAY’S readings were 185 and 161 micrograms of alcohol per litre of breath.

2. Mr Callaway has not previously been charged with a breach of this Rule.

3. The purpose of the alcohol and 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 jockeys/riders ride alcohol and drug free. The safety and welfare of both jockey and horses is paramount. Testing has been conducted since 1995 and riders are aware there is an absolute obligation under the Rules to present themselves free of the influences of alcohol and drugs. All riders are aware of the policy and the consequences should they not comply. The testing is conducted to ensure a safe and healthy workplace and to maintain the integrity of the industry.

4. On this occasion, Mr Callaway was engaged to ride at the trials at the Rangiora Racecourse and has been confirmed as having a breath alcohol level in excess of 100ug/L.

5. 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 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.

The first three principles are particularly important here.

6. Relevant Precedents – In addition to the sentencing principles, the Judicial Committee should have regard to relevant precedents in Thoroughbred and Harness Racing.

R.I.U. v R Bishop - 2 February 2013

Subject: Raceday Jockey – excess breath alcohol 512ug/L – suspended for five weeks.

R.I.U. v J Gillies - 22 September 2009

Subject: Raceday Jockey – excess breath alcohol 514 and 515ug/L – suspended for six weeks. Extract from decision: The Committee takes the view that the safety aspect in the industry is paramount and the actions of the Defendant in presenting himself on raceday with the excess alcohol level is deemed to be irresponsible. It is unacceptable for a senior rider or any rider, such as the Defendant, to put himself in a position where this could occur and was an absolute breach of the trust of his fellow riders…The integrity in racing is of the utmost importance. It was seriously compromised on this occasion. The Rules are there for a very clear purpose.

R.I.U. v T Moseley - 14 April 2009

Subject: Raceday Jockey – excess breath alcohol 214mg/L – suspended for four weeks.

Mitigating Factors -

7. It is acknowledged that Mr Callaway has admitted the breach.

8. Mr Callaway has no previous breaches of this rule.

9. Mr Callaway’s level is lower than the stated cases above.

10. Mr Callaway has co-operated fully in this investigation.

Aggravating Factors -

11. Mr Callaway has been a licence holder for many years and is more than aware of the Rules and the requirements to present himself alcohol and drug free. Mr Callaway has been tested 8 times this season for alcohol or drugs, and 25 times since the introduction of the RIU.

12. Conclusion -

13. It is submitted that a one-month suspension of Mr Callaway’s raceday jockey’s licence be imposed.

Costs -

14. The RIU are not seeking costs in this matter.

SUBMISSIONS OF RESPONDENT

[7] Mr Callaway told the Committee that he did not wish to make any excuse for his offending. He was embarrassed to be appearing before the Committee on this charge. It was a real “wake-up call”, he said.

[8] He explained that he had not been intending to ride at the trials meeting on 24 May but had been telephoned that morning and had been asked to ride one horse. When he went out drinking the previous evening, he had not considered that he would be riding at the trials the following day.

[9] The previous day, he had met up with a couple of friends from the North Island, Mr Callaway said. They went ten-pin bowling and then went for some “RTD” drinks. He was in bed at 9.00pm, he said. He had only very light food that night and had nothing to eat in the morning before going to the trials, he said.

[10] Mr Callaway submitted that his reading of 161 mg/mL was at the low end. It was less than the level at which he would be able to legally drive a car, he said.

[11] Since being stood down at the trials meeting, he had had one ride at Riccarton on 3rd June and six rides at Dunedin on 5th June, Mr Callaway said. He had been tested prior to those rides.

[12] Mr Callaway told the Committee that he does not often drink alcohol. He was well aware of the risk involved in drinking on the night before a race meeting or trials.

[13] Mr Callaway said that he had notified rides at the Oamaru meeting on Sunday, 12th June. He did not seek a deferment beyond that date. He confirmed to the Committee that he was a South Island rider.

[14] In relation to penalty, Mr Callaway said that he had been guilty of a “one-off mistake”. He also submitted that the breath-alcohol reading of 161 was “real low”. He referred to Mrs Williams’ penalty submissions where it was stated that he had been tested clear 8 times this season for alcohol/drugs and a total of 25 times since the inception of the Racing Integrity Unit and since he was first licensed in the 2002/2003 season. A suspension for one month would be a long one in the light of those matters and would hurt him financially. He submitted that a suspension for 3 weeks would be a sufficient penalty .

THE PENALTY RULE

[15] The penalty Rule is Rule 803 (3) which provides:

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

REASONS FOR PENALTY

[16] Mrs Williams’ submission was for a suspension of Mr Callaway’s licence for a period of one month. We were referred to two previous cases in which jockeys had been charged with excess breath/alcohol – Moseley (2009) and Bishop (2013). The levels in those cases were 214 mg and 512 mg and the penalties were 4 weeks and 5 weeks respectively. We have derived some assistance from those cases.

[17] Any period of suspension of that magnitude will impose a significant financial burden on Mr Callaway but he accepted that a period of suspension was a necessary consequence of his presenting himself to ride at the trials meeting on 24th May last with alcohol in his system.

[18] Mr Callaway stressed the point that his breath/alcohol level was low but, at the same time, he acknowledged that there was a zero tolerance for jockeys.

[19] Mr Callaway’s relatively low level of 161 is a mitigating factor as is his admission of the breach, albeit inevitable, his apparent genuine remorse and his previous unblemished record. We have taken these factors into account in arriving at penalty.

[20] Even taking those factors into account, we have determined that a penalty of a one month’s suspension is appropriate. This is, for Mr Callaway, by our calculation, a suspension for five South Island riding days. We are satisfied that such a penalty is sufficient to punish Mr Callaway for his wrongdoing, to deter him from reoffending and to deter others, and to express the disapproval of the racing community. A Judicial Committee must always have regard to the need to protect the integrity of racing and, in this case, the need to be seen to promote health and safety in the racing industry.

PENALTY

[21] Mr Callaway’s Jockey’s Licence (Class A) is suspended for a period of 1 month from after the close of racing on Sunday, 12th June 2016, up to and including 12th July 2016

R G McKenzie         S C Ching

CHAIR                    COMMITTEE MEMBER

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