Non Raceday Inquiry RIU v L Isherwood 30 October 2013 – Decision dated 4 November 2013

hearingid: e2092cf3d2dd5a437d55072448dd60b6

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 06/11/2013

hearing_title: Non Raceday Inquiry RIU v L Isherwood 30 October 2013 - Decision dated 4 November 2013

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

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 LEANNE ISHERWOOD

Respondent

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

Appearing: Mr R Carmichael (for the Informant) – Mr P Murray (Counsel for the Respondent), Ms L Isherwood (as the Respondent)

Registrar: Mr R Bevege

Venue: Birdcage Lounge, Awapuni Racecourse

Date of Hearing: 30 October 2013

Date of Decision: 4 November 2013

RESERVED DECISION OF JUDICIAL COMMITTEE

Dated: 4 November 2013

[1] Ms Isherwood appears before this Judicial Committee on the following charge:

Information Number A2860

THAT on the 20th day of August 2013 at Foxton Racecourse, Leanne Isherwood committed a breach of the provisions of Rule 656(3) of the Rules of Racing in that, being the holder of a Class A Rider License and being required by a Racing Investigator to supply a sample of her urine, such sample was found upon analysis to contain a controlled drug as defined in the Misuse of Drugs Act 1975, namely Methamphetamine and Amphetamine; and that Leanne Isherwood 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] On 30 September 2013 a Minute was issued by this committee, noting this matter had been adjourned until a date to be determined by the JCA. On 10 October 2013 a teleconference was held between members of the committee and Mssrs Carmichael and Murray. As a result of this teleconference a further Minute was issued; setting this matter down for a hearing in Palmerston North on 30 November 2013 at 10am.

[4] At the hearing on 30 October 2013, Mr Murray confirmed that Rule 656(3) was understood and that Ms Isherwood admitted the charge. We thus find the charge proved.

[5] Mr Carmichael tabled a signed authority from the Racing Integrity Unit (RIU) to proceed with the charge against Ms Isherwood. Copies of the Information, the appropriate notice to the various parties, and the appointment of the Judicial Committee were also tabled.

FACTS

[6] At the hearing, the Committee was provided with a Summary of Facts by Mr Carmichael outlining the circumstances from which the charge arose. Mr Carmichael explained that on 20 August 2013, Ms Isherwood was one of a number of riders selected for drug testing during routine trackwork at Foxton Racecourse. A urine sample was taken from Ms Isherwood which was subsequently analysed by the ESR in Wellington. The analysis established the presence of the drugs methamphetamine and amphetamine in Ms Isherwood’s urine sample. Both methamphetamine and amphetamine are controlled drugs within the Misuse of Drugs Act 1975.

[7] At the time of sampling, Ms Isherwood indicated to the collector that she was taking a number of prescription and non-prescription medications. These included Codeine, Coldracold, Tramadol, Panadol, anti-biotics and anti-inflammatory drugs. These substances were listed on the NZDDA sample form, produced to the committee. None of those substances contain methamphetamine or amphetamine.

[8] On 28 August 2013 Ms Isherwood’s Class A Rider License was suspended in accordance with Rule 657(1)(b).

[9] When given the opportunity to seek clarification on any matters raised by the Informant, Mr Murray submitted that the Respondent did not consume two types of drugs, but rather that amphetamine is a metabolite of methamphetamine. Mr Carmichael accepted that this was indeed accurate and there was no suggestion that Ms Isherwood had consumed two drugs.

[10] When given the opportunity to address the committee, Mr Murray sought to contextualise the consumption of the methamphetamine. He described this context as a collision of acute personal circumstances, and in support of these personal circumstances, Mr Murray produced a sworn affidavit by Ms Isherwood outlining such circumstances in more detail. The committee will not detail such circumstances as part of this written decision.

[11] He commented that a situation was created under which the consumption of the drug took place. Ms Isherwood relied on little close support in the Foxton area at the time, which was also a contributor to her state.

[12] On the 19 August 2013, Ms Isherwood received a visit from someone whom she knew, and this person was in possession of the methamphetamine. Counsel submitted that Ms Isherwood had no drugs in her house or in her possession. As a result of this visit, the methamphetamine was offered and as she was at a low-point in her life, she consumed the drug. She was adamant it was the one and only time she had taken it since she was re-licensed in September 2012. The testing that took place on 20 August 2013 was also the only time she had been tested since she resumed her riding career.

[13] Mr Murray stated there was no suggestion that she appeared under the influence of any drugs whilst she was tested, and after arriving at the course at the normal time she was instructed to continue with her normal duties post-testing.

PENALTY SUBMISSIONS BY INFORMANT

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

[15] The use of drugs, methamphetamine in particular, 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.

[16] It was accepted by the Informant that this was Ms Isherwood’s first breach of this nature under the Rules of Racing, and that a disqualification period was appropriate and a starting point of nine months be adopted.

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

• RIU v C (2009)

• RIU v M (2009)

[18] Mr Carmichael submitted that there were significant aggravating factors in the C case which were not similar for Ms Isherwood’s breach. It was the RIU’s submission that nine months period of disqualification was also the maximum being sought.

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

[20] The committee sought clarification from Mr Carmichael, in light of changes to Rule 803 in late 2009, which increased the maximum period of disqualification to five years. He submitted he was not aware of the rule change and that he had not researched other cases subsequent to the rule change. When asked if he was familiar with the RIU v W (2010) case, he replied he was; which the committee would expect as RIU v W was cited in his written submissions and provided in the documents handed up to the committee.

[21] In RIU v W a starting point of 18 months disqualification was adopted, and it was noted that the very significant rule change took effect in October 2009.

[22] Mr Carmichael was directed to consider the application of Rule 803(2)(b)(iii), to which he replied that he accepted that this rule provided for a period of disqualification not exceeding five years and a fine not exceeding $50,000.

[23] With reference to the RIU v W case, Mr Carmichael noted that reference was made in that decision to RIU v H, but that a 21 months period of disqualification was imposed for a raceday incident, which the Informant believed the committee should differentiate between those circumstances and a trackwork rider at Foxton.

[24] The committee sought clarification from Mr Carmichael as to whether he saw any difference between raceday and trackwork riders who tested positive. He believed there was a fundamental difference as trackwork riders were generally working with one or two other horses, whereas in raceday situations there was the pressure of race riding with a larger number of horses at top speed.

PENALTY SUBMISSIONS BY RESPONDENT

[25] Mr Murray submitted written penalty submissions which were based on an understanding of the maximum period of disqualification being one of 12 months, and his belief that any penalty in excess of that threshold would follow from a breach under the provisions of Rule 802. After reviewing Rule 803 in its entirety, and the specific provision of subsection (2)(b)(iii), counsel accepted that the maximum penalty with regard to disqualification was a period not exceeding five years, but that this would not alter the stance that he would take on the Respondent’s behalf. Mr Murray also accepted the judicial comment in previous decisions around the pernicious nature of methamphetamine and the need to punish accordingly.

[26] In advancing penalty submissions, he considered the difference between trackwork and raceday riders, not only from a safety perspective but also from an integrity principle as trackwork was not on public show as much as raceday riding. The resultant positive test in a trackwork situation rather than on a raceday was not a factor of great magnitude, but a factor nonetheless.

[27] Ms Isherwood had returned two clear drug tests since 20 August 2013, which underscored that the taking of methamphetamine was a one-off event, and this had been at her own expense. Ms Isherwood accepted that a period of disqualification was entirely appropriate, and that she was prepared to consent to any drug-testing regime to rehabilitate herself into the industry, and also satisfy the authorities that she is not engaged in any on-going drug use. Counsel submitted that she had also engaged with counselling and support services to assist her.

[28] Ms Isherwood had admitted the breach at an early opportunity, after considering the case against her, and was a rider with a notable career and still had much to offer the industry once a period of disqualification had been served. She had co-operated with the investigative process and was genuinely remorseful and sought to make a public apology via the hearing forum, which Mr Murray did.

[29] The period of disqualification would have a significant financial impact on her as she had no other employment and she would not be able to enter a racecourse with any of the local trainers at Foxton. This would impact her career and her livelihood and she had not worked since the License Withdrawal Notice was served on her on 28 August 2013. Mr Murray also asked the committee to consider that she had effectively already served a two month period of disqualification as she had not worked nor had any income over that period either.

[30] With reference to the RIU v W case, Mr Murray considered that case to be more serious in comparison. In that case, the respondent provided a rather fanciful explanation for recreational consumption without context or background. The decision also notes W as someone who had a chequered disciplinary history, although the breach was admitted, after some initial denials.

[31] Mr Murray accepted that whilst he and the Informant both cited the cases of RIU v M and RIU v L in their written submissions, they pre-date the rule change and will be of limited assistance to the committee.

[32] In Ms Isherwood’s case, counsel submitted there was no attempt to cheat or gain any weight advantage, nor was it a situation where she was engaged in drug use for hedonistic or recreational reasons. He submitted that she simply succumbed to temptation at a particularly low-point in her life.

[33] She did acknowledge there was always a risk to riders when riders do consume illicit drugs and that her actions will have a negative impact on the racing industry and beyond, and she accepted that the penalty must reflect both of those factors.

[34] This was the first breach of this rule for the respondent, who was now in a position where she had a greater level of personal and community support than at the time of the positive test. Sue Walsh, a local Foxton Trainer, had indicated her support for Ms Isherwood during her period of disqualification and also in the hope that she is eventually re-licensed, is prepared to offer her employment and trackwork at the time that becomes possible.

[35] Mr Murray submitted that she was someone of relative high profile within the industry and community and as such there was a greater potential for her to have an additional element of punishment as a result of her high profile.

[36] Irrespective of the maximum penalty available, it was counsel’s submission that considering the particular circumstances of this breach, a starting point of six to nine months was appropriate. There were no aggravating features of the breach, or personal to the Respondent with regard to her involvement with the racing industry. It was submitted there were a number of mitigating features that should properly operate to lower the penalty. A period of disqualification in the region of four to six months was submitted as appropriate. Further, it was submitted that Ms Isherwood was not in a financial position to realistically pay a monetary penalty of any consequence.

DECISION

[37] The committee adjourned and determined that it would reserve its decision; which it will now issue.

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

[39] Ms Isherwood is 41 years of age and has been a participant within the racing industry for some time, and is currently a Licensed Class A Rider. As such, she is acutely aware of the need for safety issues to be of paramount concern for those involved in all facets of the racing industry.

[40] The penalty that this committee will impose is a period of disqualification, which is not contested by either parties. Some of the previous cases that had been submitted by the Informant and Respondent pre-date the Rule change that took effect in October 2009, and are accordingly of limited assistance. During the hearing there was discourse surrounding the RIU v W case. The rationale behind the rule change is noted in Paragraph 6.4 of that decision:

“The prevalence of drug taking in the racing industry is a matter of concern to the JCA. The increase in penalties was widely publicised. It followed the case of NZTR v C. That case received a great deal of publicity and the following law change was unsurprising. A rider of W’s seniority would have known perfectly well that the price to be paid for taking prohibited drugs had been substantially increased.”

[41] The committee notes that cases relating to methamphetamine use, are limited in quantity since the change in October 2009, however it did find RIU v I (2010) of assistance. This case is subsequent to the W case, but does deliver a complimentary aspect in determining an appropriate starting point for the committee to adopt. At Paragraph 3.1 of RIU v I, it states:

“The use of the drug methamphetamine is of particular concern. On any view of it, the use of the drug by riders who may be affected by it when riding is quite unacceptable and must be met by penalties which will deter others from similar conduct.”

[42] Further, when acknowledging the appropriateness of imposing a period of disqualification in that decision, at Paragraph 3.2:

“…the Committee decided the only proper penalty for an offence of this kind was one of disqualification. Acceptance of the submission that a suspension with appropriate undertakings as to rehabilitative measures was an appropriate penalty in this case, would have been to ignore clear sentencing patterns for drug use established in a range of prior cases and the need to impose penalties which will be seen as a clear deterrent to the use of controlled drugs within the racing industry. Also important in that context is the basic sentencing principle that offending of broadly comparable culpability should attract broadly similar penalties.”

[43] Considering the guidance of both W and I, the committee considers a starting point of 18 months period of disqualification as appropriate.

[44] There are a number of factors that can be applied in mitigation, to reduce the final quantum of disqualification. The committee notes Ms Isherwood’s admission of the breach, her co-operation with the investigation process, and her conduct within the context of the hearing being of an exemplary nature. She also has an unblemished record with regard to previous breaches of Rule 656(3) within the racing industry. The committee also acknowledge, in mitigation, her remorse for her actions and the public apology that had been provided at the hearing.

[45] Ms Isherwood has already demonstrated a genuine motivation to rehabilitate herself and has engaged with services to assist her with her rehabilitation. This was evidenced with information furnished at the hearing and an offer of support from a current licence holder.

[46] The committee accepts that there is a distinction between trackwork and raceday positive situations, although does note that as the holder of a Class A Licence, whilst she did test positive in a trackwork situation her opportunities to ride were less restrictive than holders of a different class of licence.

[47] The committee is also satisfied that Ms Isherwood faced substantial adverse personal circumstances and reached this conclusion on the basis of evidence supplied at the hearing on her behalf by counsel.

[48] After considering all matters of mitigation, and the lack of any aggravating features, the Committee considered a period of disqualification for 12 months should be imposed.

PENALTY

[49] Ms Isherwood is accordingly disqualified for 12 months as from the date of service of the Licence Withdrawal Notice, namely 28 August 2013.

COSTS

[50] 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

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: