Non Raceday Inquiry RIU v L S Burton – Decision dated 23 September 2016 – Chair, Mr A Godsalve
ID: JCA13973
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
BETWEEN THE RACING INTEGRITY UNIT (RIU)
Informant
AND LINDA SUSAN BURTON
Unlicensed Trackwork Rider
Respondent
Information No: A7137
Appearing: Mr A Cruickshank - Investigator, Racing Integrity Unit
Ms L S BURTON - Unlicensed Trackwork Rider
Date of Hearing: 21 September 2016
Venue: Matamata Racecourse
Judicial Committee: Mr A Godsalve, Chairman - Mr A Dooley, Committee Member
Date of Decision: 23 September 2016
Charge
The Informant, Mr A CRUICKSHANK, Racing Investigator, alleges that on the 23rd day of August 2016, at the Matamata Racing Club, Matamata, having been required by an Investigator to supply a sample of urine in accordance with Rule 656(3) of the New Zealand Rules of Racing, had urine which was found, upon analysis, to contain the controlled drug THC (Cannabis) as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656(3) AND IS therefore liable to the penalty or penalties which may be imposed pursuant to Rule 803 of the said Rules.
Rule 656(3)
A Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainers 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.
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 Trainers Premises commits or is deemed to have a 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
Ms BURTON acknowledged that she understood the nature of the charge and the Rule and that she admitted the breach.
Ms BURTON acknowledged that all the relevant documents from the RIU had been disclosed to her; and that she accepted the contents of the documents and consented to them being admitted as evidence.
The proposed procedure for this hearing was explained to Ms BURTON and she had no concerns or objections.
Mr CRUICKSHANK produced a letter from Mr M GODBER, Operations Manager for the Racing Integrity Unit, authorising the filing of the Information pursuant to Rule 903(2)(a).
Summary of Agreed Facts by the Informant
On Tuesday 23rd August 2016, officials from the Racing Integrity Unit conducted routine drug testing at the Matamata Racing Club in Matamata.
Linda BURTON was one of the people randomly selected for testing and was served the appropriate notice at 6.50am by an Investigator.
Ms BURTON provided the required urine sample at 7.04am. The sample gave an indicative positive test to THC (Cannabis).
The sample was given unique number U240303 and forwarded to the ESR later that day by a Drug Detection Agency (TDDA) authorised agent of the Racing Integrity Unit for confirmation analysis.
On 25th August 2016, the Racing Integrity Unit was advised, in writing, that the sample provided by Ms BURTON had, on analysis, been found to contain the controlled drug THC (Cannabis) Acid level 30ng/mL.
A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 657(1)(a) were served on Ms BURTON on Wednesday the 7th day of September 2016 as provided in Rule 911(1)(b).
When spoken to Ms BURTON stated that she had smoked Cannabis about two weeks prior to undertaking the test. She stated that she was a social user who had been smoking Cannabis her whole life.
Ms BURTON voluntarily stood herself down from any further riding on 23 August 2016 until the results of the ESR analysis were confirmed and the Stand Down Notice served.
Linda Susan BURTON is a permanent employee of Mr Glenn OLD. She has no history of Rule breaches.
Submissions by the Respondent
Ms BURTON indicated that she did not wish to comment at this time, apart from agreeing with the submissions from Mr CRUICKSHANK.
Decision
As Ms BURTON has admitted the breach we find the charge proved.
Informant: Submissions on penalty
1. The respondent Linda Susan BURTON is an unlicensed Track Rider currently employed by licensed trainer Glenn OLD. She has been involved in the racing industry for most of her adult life. She is aged 51 years, date of birth being 10 October 1964.
2. She has admitted a breach of the Rules in relation to the positive drug test undertaken on 23 August 2106 at the Matamata Racing Club, Matamata.
3. New Zealand Thoroughbred Racing has been drug testing industry participants since 1995 and since that time there has been a growing awareness that there is an absolute obligation on those riding horses to present themselves free of the influence of any drugs.
4. All riders are aware of the policy and the consequences should they not comply. The testing is conducted for two reasons: the need to maintain a healthy and safe workplace, and secondly to maintain the integrity of the industry.
5. Historical penalties for breaches of the industry drug laws show some divergence. The type of drug, the situation and the amount of the drug in the system add to this divergence.
6. On this occasion Ms BURTON has presented herself at the Matamata Racing Club to ride trackwork while the drug THC (Cannabis) was within her body.
7. THC (Cannabis) is a Class C controlled drug.
8. It is submitted that a period of 2 months suspension and the costs of the analysis of $187-50 (to the RIU) should be imposed.
9. In support of this I refer to the following decisions:
RIU v N TEELUCK (30.01.16) in this case a Class B Apprentice jockey tested positive to Cannabis. He received a 2 month suspension and costs of $187-50.
RIU v H L BORROWS (14.12.15) in this case a trackwork rider tested positive to Cannabis. She received a 2 month suspension and costs of $187-50.
RIU v B A SWINBURNE (2.4.14) in this case a trackwork rider tested positive to Cannabis. He received a 5 week suspension and a fine of $200 and costs of $1187-50.
RIU v LAUDER (12.02.13) in this case a trackwork rider tested positive to Cannabis and received a 6 week suspension and costs of $172-21
RIU v BROWNIE (10.5.12) in this case a trackwork rider tested positive to Cannabis and received a 2 month suspension.
RIU v BURGESS (10.5.12) in this case a trackwork rider tested positive to Cannabis and received a 2 months suspension and costs of $172.21
RIU v TATA (1.12.11) in this case a trackwork rider tested positive to Cannabis and received a 10 week suspension and costs of $172-21.
RIU v P ORMSBY (1.12.11) in this case a trackwork rider tested positive to Cannabis and received a 3 months suspension and costs of $172-21 (This was his second offence).
Respondent: Submissions on Penalty
Ms BURTON said that she did not consider the reading of 30 ng/ml to be very high at all, and that she had not smoked Cannabis for approximately 2 weeks prior to the test. She said that she did not consider her use of Cannabis to be ‘addictive’ and considered herself to be a ‘casual’ user. Ms BURTON asked the Committee if the penalty it was to impose on her could be a monetary one as she needed to get back to work. She told the Committee that her employer, Mr G OLD was holding a position for her however she needed to take that up as soon as she could.
Reasons for Penalty
The JCA Penalty Guide does not provide a starting point for breaches of this particular Rule. It makes reference to the penalties being ‘fact dependant’.
It is therefore incumbent on Committees to take each set of circumstances, relative readings, and any past breaches of respondents into consideration when assessing appropriate penalties. Clearly penalties imposed on other industry participants for similar breaches are also relevant. Most of the previous penalties for breaches of this Rule-including those referred to by Mr CRUICKSHANK in his submissions, have resulted in suspensions of licensees for up to 3 months. On a few occasions a fine/suspension combination has been employed.
The Committee accept that Ms BURTON has admitted the breach at the first opportunity and that she stood herself down immediately after being tested while awaiting the result of her test.
It is clearly of particular concern that a trackwork rider was indulging in smoking Cannabis. The Matamata track is a very busy place in early morning training, 600 horses or more use the track each month, and it is therefore clear that serious safety issues for other riders, trainers, ground staff, and horses exist when riders have used any type of drug.
We have noted Ms BURTON’s submission that any penalty imposed today be a monetary one, however we believe that would set a precedent which could make it difficult for other Committees when assessing penalties for similar breaches.
We consider the fact that Ms BURTON’s very low reading in her positive test indicates that she had not smoked Cannabis for some time and when assessing her penalty, we took that into consideration. Further to that, her reading was the lowest of the comparative cases submitted by the RIU. Clearly this does not absolve her from a penalty however it is a mitigating factor for the Committee to consider.
Penalty
After taking all of the above matters into consideration the Committee imposes a suspension on Ms BURTON of 6 weeks, to commence on 23 August 2016 – the day on which she stood herself down, and to be completed on 4th October 2016.
Ms BURTON is further ordered to pay to the RIU the cost of the sample analysis, being $187.50.
The RIU have not made an application for any further costs.
Since this matter was heard on a raceday there will be no JCA costs.
Alan Godsalve Adrian Dooley
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 26/09/2016
Publish Date: 26/09/2016
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 26/09/2016
hearing_title: Non Raceday Inquiry RIU v L S Burton - Decision dated 23 September 2016 - Chair, Mr A Godsalve
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
BETWEEN THE RACING INTEGRITY UNIT (RIU)
Informant
AND LINDA SUSAN BURTON
Unlicensed Trackwork Rider
Respondent
Information No: A7137
Appearing: Mr A Cruickshank - Investigator, Racing Integrity Unit
Ms L S BURTON - Unlicensed Trackwork Rider
Date of Hearing: 21 September 2016
Venue: Matamata Racecourse
Judicial Committee: Mr A Godsalve, Chairman - Mr A Dooley, Committee Member
Date of Decision: 23 September 2016
Charge
The Informant, Mr A CRUICKSHANK, Racing Investigator, alleges that on the 23rd day of August 2016, at the Matamata Racing Club, Matamata, having been required by an Investigator to supply a sample of urine in accordance with Rule 656(3) of the New Zealand Rules of Racing, had urine which was found, upon analysis, to contain the controlled drug THC (Cannabis) as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656(3) AND IS therefore liable to the penalty or penalties which may be imposed pursuant to Rule 803 of the said Rules.
Rule 656(3)
A Rider, or any other Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainers 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.
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 Trainers Premises commits or is deemed to have a 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
Ms BURTON acknowledged that she understood the nature of the charge and the Rule and that she admitted the breach.
Ms BURTON acknowledged that all the relevant documents from the RIU had been disclosed to her; and that she accepted the contents of the documents and consented to them being admitted as evidence.
The proposed procedure for this hearing was explained to Ms BURTON and she had no concerns or objections.
Mr CRUICKSHANK produced a letter from Mr M GODBER, Operations Manager for the Racing Integrity Unit, authorising the filing of the Information pursuant to Rule 903(2)(a).
Summary of Agreed Facts by the Informant
On Tuesday 23rd August 2016, officials from the Racing Integrity Unit conducted routine drug testing at the Matamata Racing Club in Matamata.
Linda BURTON was one of the people randomly selected for testing and was served the appropriate notice at 6.50am by an Investigator.
Ms BURTON provided the required urine sample at 7.04am. The sample gave an indicative positive test to THC (Cannabis).
The sample was given unique number U240303 and forwarded to the ESR later that day by a Drug Detection Agency (TDDA) authorised agent of the Racing Integrity Unit for confirmation analysis.
On 25th August 2016, the Racing Integrity Unit was advised, in writing, that the sample provided by Ms BURTON had, on analysis, been found to contain the controlled drug THC (Cannabis) Acid level 30ng/mL.
A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 657(1)(a) were served on Ms BURTON on Wednesday the 7th day of September 2016 as provided in Rule 911(1)(b).
When spoken to Ms BURTON stated that she had smoked Cannabis about two weeks prior to undertaking the test. She stated that she was a social user who had been smoking Cannabis her whole life.
Ms BURTON voluntarily stood herself down from any further riding on 23 August 2016 until the results of the ESR analysis were confirmed and the Stand Down Notice served.
Linda Susan BURTON is a permanent employee of Mr Glenn OLD. She has no history of Rule breaches.
Submissions by the Respondent
Ms BURTON indicated that she did not wish to comment at this time, apart from agreeing with the submissions from Mr CRUICKSHANK.
Decision
As Ms BURTON has admitted the breach we find the charge proved.
Informant: Submissions on penalty
1. The respondent Linda Susan BURTON is an unlicensed Track Rider currently employed by licensed trainer Glenn OLD. She has been involved in the racing industry for most of her adult life. She is aged 51 years, date of birth being 10 October 1964.
2. She has admitted a breach of the Rules in relation to the positive drug test undertaken on 23 August 2106 at the Matamata Racing Club, Matamata.
3. New Zealand Thoroughbred Racing has been drug testing industry participants since 1995 and since that time there has been a growing awareness that there is an absolute obligation on those riding horses to present themselves free of the influence of any drugs.
4. All riders are aware of the policy and the consequences should they not comply. The testing is conducted for two reasons: the need to maintain a healthy and safe workplace, and secondly to maintain the integrity of the industry.
5. Historical penalties for breaches of the industry drug laws show some divergence. The type of drug, the situation and the amount of the drug in the system add to this divergence.
6. On this occasion Ms BURTON has presented herself at the Matamata Racing Club to ride trackwork while the drug THC (Cannabis) was within her body.
7. THC (Cannabis) is a Class C controlled drug.
8. It is submitted that a period of 2 months suspension and the costs of the analysis of $187-50 (to the RIU) should be imposed.
9. In support of this I refer to the following decisions:
RIU v N TEELUCK (30.01.16) in this case a Class B Apprentice jockey tested positive to Cannabis. He received a 2 month suspension and costs of $187-50.
RIU v H L BORROWS (14.12.15) in this case a trackwork rider tested positive to Cannabis. She received a 2 month suspension and costs of $187-50.
RIU v B A SWINBURNE (2.4.14) in this case a trackwork rider tested positive to Cannabis. He received a 5 week suspension and a fine of $200 and costs of $1187-50.
RIU v LAUDER (12.02.13) in this case a trackwork rider tested positive to Cannabis and received a 6 week suspension and costs of $172-21
RIU v BROWNIE (10.5.12) in this case a trackwork rider tested positive to Cannabis and received a 2 month suspension.
RIU v BURGESS (10.5.12) in this case a trackwork rider tested positive to Cannabis and received a 2 months suspension and costs of $172.21
RIU v TATA (1.12.11) in this case a trackwork rider tested positive to Cannabis and received a 10 week suspension and costs of $172-21.
RIU v P ORMSBY (1.12.11) in this case a trackwork rider tested positive to Cannabis and received a 3 months suspension and costs of $172-21 (This was his second offence).
Respondent: Submissions on Penalty
Ms BURTON said that she did not consider the reading of 30 ng/ml to be very high at all, and that she had not smoked Cannabis for approximately 2 weeks prior to the test. She said that she did not consider her use of Cannabis to be ‘addictive’ and considered herself to be a ‘casual’ user. Ms BURTON asked the Committee if the penalty it was to impose on her could be a monetary one as she needed to get back to work. She told the Committee that her employer, Mr G OLD was holding a position for her however she needed to take that up as soon as she could.
Reasons for Penalty
The JCA Penalty Guide does not provide a starting point for breaches of this particular Rule. It makes reference to the penalties being ‘fact dependant’.
It is therefore incumbent on Committees to take each set of circumstances, relative readings, and any past breaches of respondents into consideration when assessing appropriate penalties. Clearly penalties imposed on other industry participants for similar breaches are also relevant. Most of the previous penalties for breaches of this Rule-including those referred to by Mr CRUICKSHANK in his submissions, have resulted in suspensions of licensees for up to 3 months. On a few occasions a fine/suspension combination has been employed.
The Committee accept that Ms BURTON has admitted the breach at the first opportunity and that she stood herself down immediately after being tested while awaiting the result of her test.
It is clearly of particular concern that a trackwork rider was indulging in smoking Cannabis. The Matamata track is a very busy place in early morning training, 600 horses or more use the track each month, and it is therefore clear that serious safety issues for other riders, trainers, ground staff, and horses exist when riders have used any type of drug.
We have noted Ms BURTON’s submission that any penalty imposed today be a monetary one, however we believe that would set a precedent which could make it difficult for other Committees when assessing penalties for similar breaches.
We consider the fact that Ms BURTON’s very low reading in her positive test indicates that she had not smoked Cannabis for some time and when assessing her penalty, we took that into consideration. Further to that, her reading was the lowest of the comparative cases submitted by the RIU. Clearly this does not absolve her from a penalty however it is a mitigating factor for the Committee to consider.
Penalty
After taking all of the above matters into consideration the Committee imposes a suspension on Ms BURTON of 6 weeks, to commence on 23 August 2016 – the day on which she stood herself down, and to be completed on 4th October 2016.
Ms BURTON is further ordered to pay to the RIU the cost of the sample analysis, being $187.50.
The RIU have not made an application for any further costs.
Since this matter was heard on a raceday there will be no JCA costs.
Alan Godsalve Adrian Dooley
Chairman Committee Member
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