Non Raceday Inquiry RIU v N Teeluck – decision dated 30 January 2016 – Chair, Mr P Williams

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hearing_title: Non Raceday Inquiry RIU v N Teeluck - decision dated 30 January 2016 - Chair, Mr P Williams

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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) - Informant

AND

NIVESH TEELUCK - Respondent

Judicial Committee: Mr P Williams, Chairman - Mr N McCutcheon, Committee Member

Appearing: Mr S Irving, Investigator, as the Informant

Mr N Teeluck, Licensed Apprentice Jockey, as the Respondent

Mrs K Zimmerman, Licensed Trainer and Mr Teeluck’s employer

Venue: Trentham Racecourse

Date of Hearing: 30 January 2016

Date of Decision: 30 January 2016

DECISION OF JUDICIAL COMMITTEE

1. Mr Teeluck appears before this Judicial Committee on the following charge:-

Information Number A4176

THAT On the 18th January 2016 at Otaki racecourse, having been required by a Stipendiary Steward 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 or penalties which may be imposed on you pursuant to Rule 803 of the said rules.

2. Rule 656(3) states:-

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.

3. Rule 803 states:-

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

4. At the start of the hearing, Mr Teeluck confirmed he understood the Rule under which he had been charged and also that he admitted the charge. He acknowledged all the relevant documents from the RIU had been disclosed to him. All of the documents were shown to Mrs Zimmerman who advised she had not seen Mr Irving’s “Summary of Facts” or “Penalty Submissions” as she had been away at the Karaka sales. After reading the two documents she and Mr Teeluck said they accepted the contents of the documents and consented to them being admitted as evidence.

5. Prior to the hearing commencing Mr Irving produced a signed authority from the General Manager of the Racing Integrity Unit (RIU), Mr M Godber dated 22 January 2016 authorising the filing of the Information pursuant to Rule 903(2)(d).

SUMMARY OF FACTS BY THE INFORMANT

6. Mr Irving provided the following Summary of Facts:-

7. “The respondent Nivesh TEELUCK is a Licenced Class B (Apprentice Jockey) rider under the Rules of New Zealand Thoroughbred Racing. He is 29 years old and commenced his first apprenticeship in Queensland in 2010.

8. On Monday the 18th January 2016, officials from the Racing Integrity Unit conducted random drug testing at the Otaki Racecourse. Apprentice TEELUCK was one of the people randomly selected for testing and was served with the appropriate notice. TEELUCK provided a urine sample at 8.24am which returned a non-negative indicative reading for Cannabis. The sample was forwarded to the ESR for analysis.

9. When interviewed on the day, Apprentice TEELUCK explained that he had smoked cannabis at 9.00pm the previous evening as he was having issues with his wife who resides overseas. He stated that he had been using Cannabis regularly since his injury on the 31st October but had ceased on the 02nd January, two weeks prior to him resuming track work riding.

10. On the 21st January the ESR confirmed that the urine sample provided by TEELUCK was positive to cannabis at a THC Acid level of > 300 ng/mL. – ESR reference A16ESR01091-001.

11. Apprentice TEELUCK has one previous Cannabis positive recorded in November 2010 while apprenticed in Queensland”.

12. Neither Mr Teeluck nor Mrs Zimmerman had any questions of Mr Irving.

13. The Committee asked Mr Irving if he was able to comment on whether the RIU viewed the reading of 300ng/mL as being a low, medium or high reading. He said he was unable to comment as there were a number of factors relating to the quality of the cannabis used and the time lapse from use to testing taking place that would impact on the reading produced. He noted that whilst ESR had previously commented on the level of the reading provided they now only recorded if the reading was under or over 300 ng/mL. He also noted the ESR comment on the report that “THC Acid levels do not indicate impairment or when and how much cannabis was used”.

SUBMISSIONS BY THE RESPONDENT

14. Mr Teeluck confirmed the events on the morning of 18 January 2016 as stated by Mr Irving were correct. He provided the following statement to the Committee:-

15. “I. Nivesh Teeluck, apprentice to Madam K Zimmerman is writing this letter to express my disappointment and how embarrassed I am for what I done. Firstly, I want to apologise to my trainer Madam K Zimmerman, who is the one that brought me into New Zealand Racing industry, gave me a very good opportunity and been very supporting. Apologise to the New Zealand Racing and my family. I have no racing background. I was never involve with horses until 2009.

16. My first year of apprenticeship, I was awarded the most promising apprentice, Second year, last year, I was awarded the most outstanding prentice and Head pupil in the Central district. This season is my third year and I had a fall on the 31 of October 2015, broke my collarbone in that fall. I never broken any bones before. During that period nothing in my life was going good, my first ever injury which was a shock and broke up with my wife. My body and mind was not right. Missing my family, alone in a different country, I made the wrong decision under those circumstances. I had a smoke (cannabis), felt no pain so I kept smoking for few weeks.

17. I am not trying to justify myself or find any excuses for what I done because I’m in the wrong. I had an appointment with the doctor on the 6 of January and got two days of physio and clearance back on the ground and riding. I was sore for the first week so I had a smoke on the Sunday, day before getting tested. I was not fully fit to come back riding but I had to. The money from ACC was not enough to pay my bills, staying 10 weeks at home was driving me insane and I wanted to get back on a horse. I was tested positive to cannabis in Queensland nearly five years ago. I have been drug tested more than three times in New Zealand and I was clean. I made a mistake and am ready to pay the consequences. Thank you in advance.”

18. To a question from the Committee Mr Teeluck confirmed he smoked cannabis at approximately 9pm on Sunday 17 January 2016 and rode track work at 6am the following morning. He further confirmed that following his injury in late October 2015 he had been using cannabis on a regular basis as it was the only thing that helped suppressed the constant pain he was feeling in his neck and shoulders and even when walking and breathing.

DECISION

19. As Mr Teeluck has admitted the breach the charge is found to be proved.

SUBMISSIONS ON PENALTY BY THE INFORMANT

20. Mr Irving made the following submissions:-

21  “ The respondent Nivesh Teeluck is a Class B Apprentice Jockey employed by licensed trainer Mrs Karen Zimmerman. He is 29 years old and has been involved in the racing industry since 2009.

22. He has admitted a breach of the rules in relation to the positive drug test returned at the Otaki racecourse on the 18th January 2016.

23. 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.

24. 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.

25. 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 other circumstances.

26. On this occasion Mr Teeluck was track work riding at the Otaki racecourse while the drug THC (Cannabis) was within his body.

27. THC (Cannabis) is a Class C controlled drug.

28. It is submitted that a three month suspension (backdated to the 18th January) and the cost of the ESR analysis of $187.50 (to the RIU) should be imposed.

29. In support of this I refer to the following decisions:

RIU v P. ORMSBY (05.12.2011) - track work rider tested positive to Cannabis (second offence – four years prior) receiving a three month suspension and costs of $172.21.

RIU v HR BURROWS (14.12.2015) – track work rider tested positive to Cannabis receiving a two month suspension and costs of $187.50.

RIU v C HOLLIS (17.01.2015) - track work rider tested positive to Cannabis receiving a two and a half month suspension and costs of $187.50.

30. The RIU are seeking costs for the ESR analysis of the sample of $187.50.

31. It is acknowledged that Mr Teeluck has admitted the breach at the first opportunity and has been fully cooperative throughout the process. He voluntarily stood himself down from track riding upon returning the indicative ‘non-negative’ result on the 18th January.

32. Mr Teeluck suffered a broken collar bone in a track riding fall on October 31, 2015. For two months he was unable to ride and was essentially unable to work. It is during this time that he started smoking Cannabis. He stated that he stopped smoking Cannabis a fortnight before his return to track riding, knowing full well the implications. However, following a troubling telephone conversation with his wife who resides in France, he smoked Cannabis on the evening before the testing day.

33. Mr Teeluck was previously drug tested at the Foxton Trials on the 06th September 2015 where he provided a clean sample. According to RIU (inception 2011) records he has been tested on one other occasion, again providing a clean sample.

34. Mrs Zimmerman has also been cooperative and supportive throughout the process. She operates a very professional business and has a strict anti-drug policy. She has indicated that she is still prepared to support Mr Teeluck by employing him during his suspension ‘on the ground’.

35. Approximately five years ago Mr Teeluck was charged with the same offence on the Gold Coast, Australia and received a three month suspension. (refer attached penalty history)

36. It is therefore submitted that a penalty of three month’s suspension and $187.50 of costs to the RIU should be imposed”.

37. Mr Irving was asked whether the RIU viewed a breach of this Rule by a licensed jockey as more serious that a breach by a track work rider. Mr Irving said that because Mr Teeluck had not ridden on a raceday since late October 2015 in his view he considered Mr Teeluck a track work rider on the day he was tested.

SUBMISSIONS ON PENALTY BY THE RESPONDENT

38. Mr Teeluck said everything he wanted to say was in the document he had provided to the hearing (and quoted above). He also provided a character reference from Ms Terese Fulford who is the manager of the Otaki Racecourse and Mr Teeluck’s landlady.

39. Mrs Zimmerman said Mr Teeluck was a reliable, loyal, respectful and hard working apprentice. She said he came out of his time in early January 2016 but she was finalising the paperwork on behalf of Mr Teeluck and supporting him in his wish to extend his apprenticeship for a further 12 months.

40. To a question from the Committee Mr Teeluck confirmed that when he tested positive to cannabis in Australia it was as a track work rider. He also confirmed he was not injured at the time of that test.

41. To a further question he said he agreed that by using cannabis and then riding track work he was technically in breach of the Rules but he questioned whether he was putting the safety of others at risk the next day as he was “sober” when riding the horses because it was 9 hours since he smoked the cannabis.

REASONS FOR PENALTY

42. The Committee has carefully considered the evidence and the submissions presented. The facts as described by Mr Irving have not been disputed by either Mr Teeluck or Mrs Zimmerman. The Committee has also had regard to the letter of support provided by Mr Teeluck and the positive comments made about Mr Teeluck by Mrs Zimmerman during the course of the hearing.

43. To his credit Mr Teeluck has admitted the breach at the first opportunity. It is also clear he has been fully cooperative with the Racing Integrity Unit throughout the investigation and stood himself down immediately he was advised of the “non-negative” test result on the morning it happened. The Committee also notes that during the hearing Mr Teeluck said he has been under some personal pressure over the past 3 months as a result of the injury he sustained in late October 2015 preventing him from race riding and also because of issues relating to his marriage.

44. There are, however, several aggravating factors that must be taken into consideration. The integrity of the racing industry is always paramount and this has been compromised by Mr Teeluck who was riding track work whilst under the influence of cannabis and thereby posing a safety risk to himself and others and the horses they were riding at the Otaki racecourse on 18 January 2016. The Committee does not agree that Mr Teeluck should be classed as a track work rider at the time of the offence. He is a licensed Apprentice Jockey and was close to resuming raceday riding and as such we view the incident more seriously than if he was just a licensed track work rider. We note that had he ridden on a race day soon after 18 January and been tested it is highly likely he would have tested positive to the cannabis used on 17 January.

45. The Committee notes that the THC Acid Level reading of over 300ng/ml has not been classified by ESR Ltd as being a low, medium or high reading.

46. The Committee has some considerable concerns in relation to Mr Teeluck readily admitting he used cannabis almost continually for two months after being injured and only stopped 2 weeks before he was due to return to riding track work on 16 January 2016. The Committee also notes Mr Teeluck, whilst accepting he was in breach of the Rules when tested on 18 January, did not consider himself a safety risk to other riders and horses on the track at Otaki that morning.

47. Whilst this is Mr Teeluck’s first breach of this Rule in this country the Committee notes that he was charged with a similar breach in Queensland in October 2010 and suspended for 3 months.

48. The JCA’s Penalty Guidelines do not state a starting point for a breach of Rule 656(3) as each case is fact dependant. However, the Committee has referred to similar breaches of this Rule (in relation the use of cannabis) over recent years to ensure some consistency with those decisions but notes that almost all the cases have involved track work riders as opposed to licensed jockeys. The penalties imposed in those cases cover a wide range but in the main have been suspensions for periods of up to 3 months coupled in some instances with a fine.

49. Having taken all the above into consideration the Committee believes on this occasion a period of suspension is an appropriate penalty. The Committee is aware that Mr Teeluck stood himself down from riding and on 18 January 2016 and the suspension imposed will commence from that date.

PENALTY

50. Mr Teeluck is suspended from 18 January 2016 to 30 April 2016.

COSTS

51. The RIU has sought costs of $187.50, being the cost of the sample analysis, and the Committee orders Mr Teeluck to pay that cost to the RIU.

52. As this hearing was held on a race day there are no further costs payable to the RIU or the JCA.

Paul Williams           Noel McCutcheon

Chairman                 Committee Member

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