Non Raceday Inquiry RIU v NM Bishop 26 July 2012 – Decision dated 1 August 2012
ID: JCA10851
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND NORA MARY BISHOP
Junior Horsewoman
Respondent
Information: A4801
Judicial Committee: Prof G Hall, Chairman - Mr D Steel, Committee Member
Appearing: Mr B Kitto, for the informant, The respondent in person
Registrar: Mr M Davidson
Venue: Forbury Park Raceway
Date of Hearing: 26 July 2012
Date of Oral Decision: 26 July 2012
Date of Written Decision: 1 August 2012
_____________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
_____________________________________________________________________
[1] Ms Bishop appears before this Judicial Committee on a charge of being the holder of a junior horsewoman’s licence issued under the New Zealand Rules of Harness Racing, having been required under rr 212(1)(g) and 226(2)(d) by Racecourse Inspector Mr Kitto to supply a sample of her urine at the driver drug testing room at the Forbury Park racecourse on 21 June 2012, supplied a sample of urine to the authorised person, Mrs Hay, which was found upon analysis to contain the controlled substance THC acid in excess of 300ng/ml, (cannabis), as defined in the Misuse of Drugs Act, 1975. The respondent is alleged to have thereby committed a breach of r 512(1) of the New Zealand Rules of Harness Racing. She is liable to the penalties that may be imposed upon her pursuant to the provisions of r 1003(1)(a), (b) and (c).
[2] The respondent is the holder of a junior horsewoman’s licence, which was issued under the New Zealand Rules of Harness Racing. She has been licensed since 18 August 2010 (trials licence) and has held her junior horsewoman’s licence since 5 March 2012.
[3] This Committee informed Ms Bishop that she had the right to be assisted by a senior horseman or woman and to be represented by a lawyer. She was told it was most unusual for a junior driver not to be represented, particularly on a charge of this nature. She said she understood this and was adamant that she wished the hearing to proceed.
[4] Mr Kitto produced written permission to file the information in accordance with r 1103(4)(c) from the Operations Manager of the RIU, Mr M Godber, alleging a breach of r 512(1). This letter was dated 1 July 2012.
[5] Mr Kitto read rr 512(1) and 1003(1)(a)(b) and (c). Ms Bishop stated she understood the rules and admitted the charge.
[6] These rules read as follows:
512(1) Every horseman commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), 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.
1003(1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) a fine not exceeding $10,000.00; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months and/or
(c) disqualification for a period not exceeding 12 months.
Facts and submissions:
[7] Mr Kitto stated that on Thursday 21 June 2012 workplace driver drug testing was conducted in the administration building at the Forbury Park racecourse during the Forbury Park Trotting Club’s race meeting in accordance with rr 212(l)(g) and 226(2)(d). Seventeen horsemen and women were urine tested during the course of the evening.
[8] Ms Bishop was served with a Harness Racing Drug Testing Notification form at 6 pm. Ms Bishop supplied a sample of urine at 7.55 pm. There were no problems associated with this test. Ms Bishop’s sample, together with the other samples obtained, were forwarded to the ESR for analysis.
[9] On 27 June 2012 ESR reported Ms Bishop's sample was positive with a THC Acid level in excess of 300ng/ml. Mr Kitto explained that this did not indicate how much cannabis was consumed. However, this was a very high reading, which he said suggested recent use of cannabis.
[10] Ms Bishop was issued with a written notice on 28 June 2012 advising her that her horsewomen’s licence was automatically suspended. Ms Bishop was interviewed that day and a transcript of that interview was placed before this committee. Significantly, Ms Bishop denied having used cannabis on the raceday concerned, 21 June 2012, but agreed that it could have been a few days prior to raceday. She told Mr Kitto she would never use cannabis on a raceday or bring it to the racecourse.
[11] Ms Bishop stated that she agreed with the summary of facts. She explained that when she spoke to Mr Kitto she could not remember when she had last used cannabis but now recalled that it was 2 days prior to raceday.
Submissions as to penalty:
[12] Mr Kitto produced the respondent’s record, which was clear. However, at the time Ms Bishop applied for her licence she disclosed she had been convicted of a charge of possession of cannabis in the criminal courts in 2007.
[13] Mr Kitto emphasised the purpose of the drug testing rules was to enable random testing to be carried out at any race meeting, at any time, with no prior notice of intention to do so. He expressed concern that the respondent did not appear to have learnt from her 2007 conviction.
[14] Mr Kitto submitted that a penalty of 8 months’ suspension of the respondent’s horsewoman’s licence was appropriate. In support of this submission he produced a schedule of recent cases in both codes.
[15] Mr Kitto accepted that the respondent’s financial position was not strong. The RIU did not seek a financial penalty.
[16] Ms Bishop was remorseful and said that she wished to address her use of cannabis. She further submitted that the time she was away from driving needed to be of sufficient length to enable her to confront her cannabis use. She said she realised it was “a privilege to get a licence” and she was aware she had “abused” this.
Decision:
[17] The use of drugs seriously impugns the integrity of racing, and in particular, the safety of horsemen and women and horses being driven at race meetings.
[18] We are concerned that the respondent has breached the rules so soon after obtaining her junior horsewoman’s licence. It is a period of only 3 and a half months during which she has had 6 drives. In addition, the breach occurred despite a previous conviction in the criminal courts for cannabis possession some 5 years ago.
[19] Ms Bishop’s contrition appeared to us to be genuine. She has expressed a willingness, indeed a determination, to deal with her cannabis issues. We explained to her that the consequences were likely to be severe were she before a judicial committee again on a drugs related charge. She said she understood this. We suggested that professional help might be required to help her address her issues and she indicated that she would seek this.
[20] We wish to assist the respondent in her efforts to rehabilitate herself, yet we also need to hold her accountable and to deter her and others from breaching this rule in the future. We have already emphasised the need for denunciation of her actions.
[21] We have found the schedule of recent decisions under r 512(1) with respect to cannabis to be very helpful. The harness cases demonstrate a suspension of around 6 months, together with a fine of up to $500, not to be uncommon. In thoroughbred racing jockeys tend to be disqualified, while track workers often receive a short period of suspension. We were concerned at the apparently anomalous decision in RIU v M (August 2011), where a penalty of only 2 months’ suspension was imposed. We suspected the level of cannabis recorded in that case to have been low. While the reported decision does not disclose the level, Mr Kitto made inquiries and advised us that it was only marginally above the 15 ng/ml level.
[22] By way of comparison with M, Ms Bishop’s level was very high. We accept her statement that this was the result of recent use. The fact that she was prepared to drive at a race meeting so soon after using cannabis is of particular concern to us. We do not view the fact that consumption was not on raceday or that the drug was not brought to the racecourse to be mitigating factors. Rather, this is the absence of aggravating factors.
[23] Personal mitigating factors are the respondent’s personal circumstances, including the fact she has 3 young children and is receiving a benefit, her ready admission of the breach, and that this is her first breach of the rules. The weight to be given to this last factor is tempered by the fact that she has held a licence in the industry for only a relatively brief period of time.
Penalty:
[24] We impose a suspension of the respondent’s junior horsewoman’s licence for a period of 6 months commencing on 28 June last, the day on which her licence was suspended under r 514(2). We have regard to her limited financial resources, although we note she has the means to be able to use cannabis, and refrain from the imposition of a financial penalty.
[25] The RIU did not seek costs but asked that the respondent meet the expense of the ESR analysis. Mr Kitto stated that it was appropriate that there also be a contribution to JCA costs. We order costs in the sum of $397.21. This comprises the ESR testing fee of $172.21 and a contribution of $225 to JCA costs, which are a little over $500.
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 26/07/2012
Publish Date: 26/07/2012
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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informantnumber: A4801
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penaltyrequired:
decisiondate: 26/07/2012
hearing_title: Non Raceday Inquiry RIU v NM Bishop 26 July 2012 - Decision dated 1 August 2012
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 Harness Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND NORA MARY BISHOP
Junior Horsewoman
Respondent
Information: A4801
Judicial Committee: Prof G Hall, Chairman - Mr D Steel, Committee Member
Appearing: Mr B Kitto, for the informant, The respondent in person
Registrar: Mr M Davidson
Venue: Forbury Park Raceway
Date of Hearing: 26 July 2012
Date of Oral Decision: 26 July 2012
Date of Written Decision: 1 August 2012
_____________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
_____________________________________________________________________
[1] Ms Bishop appears before this Judicial Committee on a charge of being the holder of a junior horsewoman’s licence issued under the New Zealand Rules of Harness Racing, having been required under rr 212(1)(g) and 226(2)(d) by Racecourse Inspector Mr Kitto to supply a sample of her urine at the driver drug testing room at the Forbury Park racecourse on 21 June 2012, supplied a sample of urine to the authorised person, Mrs Hay, which was found upon analysis to contain the controlled substance THC acid in excess of 300ng/ml, (cannabis), as defined in the Misuse of Drugs Act, 1975. The respondent is alleged to have thereby committed a breach of r 512(1) of the New Zealand Rules of Harness Racing. She is liable to the penalties that may be imposed upon her pursuant to the provisions of r 1003(1)(a), (b) and (c).
[2] The respondent is the holder of a junior horsewoman’s licence, which was issued under the New Zealand Rules of Harness Racing. She has been licensed since 18 August 2010 (trials licence) and has held her junior horsewoman’s licence since 5 March 2012.
[3] This Committee informed Ms Bishop that she had the right to be assisted by a senior horseman or woman and to be represented by a lawyer. She was told it was most unusual for a junior driver not to be represented, particularly on a charge of this nature. She said she understood this and was adamant that she wished the hearing to proceed.
[4] Mr Kitto produced written permission to file the information in accordance with r 1103(4)(c) from the Operations Manager of the RIU, Mr M Godber, alleging a breach of r 512(1). This letter was dated 1 July 2012.
[5] Mr Kitto read rr 512(1) and 1003(1)(a)(b) and (c). Ms Bishop stated she understood the rules and admitted the charge.
[6] These rules read as follows:
512(1) Every horseman commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), 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.
1003(1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) a fine not exceeding $10,000.00; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months and/or
(c) disqualification for a period not exceeding 12 months.
Facts and submissions:
[7] Mr Kitto stated that on Thursday 21 June 2012 workplace driver drug testing was conducted in the administration building at the Forbury Park racecourse during the Forbury Park Trotting Club’s race meeting in accordance with rr 212(l)(g) and 226(2)(d). Seventeen horsemen and women were urine tested during the course of the evening.
[8] Ms Bishop was served with a Harness Racing Drug Testing Notification form at 6 pm. Ms Bishop supplied a sample of urine at 7.55 pm. There were no problems associated with this test. Ms Bishop’s sample, together with the other samples obtained, were forwarded to the ESR for analysis.
[9] On 27 June 2012 ESR reported Ms Bishop's sample was positive with a THC Acid level in excess of 300ng/ml. Mr Kitto explained that this did not indicate how much cannabis was consumed. However, this was a very high reading, which he said suggested recent use of cannabis.
[10] Ms Bishop was issued with a written notice on 28 June 2012 advising her that her horsewomen’s licence was automatically suspended. Ms Bishop was interviewed that day and a transcript of that interview was placed before this committee. Significantly, Ms Bishop denied having used cannabis on the raceday concerned, 21 June 2012, but agreed that it could have been a few days prior to raceday. She told Mr Kitto she would never use cannabis on a raceday or bring it to the racecourse.
[11] Ms Bishop stated that she agreed with the summary of facts. She explained that when she spoke to Mr Kitto she could not remember when she had last used cannabis but now recalled that it was 2 days prior to raceday.
Submissions as to penalty:
[12] Mr Kitto produced the respondent’s record, which was clear. However, at the time Ms Bishop applied for her licence she disclosed she had been convicted of a charge of possession of cannabis in the criminal courts in 2007.
[13] Mr Kitto emphasised the purpose of the drug testing rules was to enable random testing to be carried out at any race meeting, at any time, with no prior notice of intention to do so. He expressed concern that the respondent did not appear to have learnt from her 2007 conviction.
[14] Mr Kitto submitted that a penalty of 8 months’ suspension of the respondent’s horsewoman’s licence was appropriate. In support of this submission he produced a schedule of recent cases in both codes.
[15] Mr Kitto accepted that the respondent’s financial position was not strong. The RIU did not seek a financial penalty.
[16] Ms Bishop was remorseful and said that she wished to address her use of cannabis. She further submitted that the time she was away from driving needed to be of sufficient length to enable her to confront her cannabis use. She said she realised it was “a privilege to get a licence” and she was aware she had “abused” this.
Decision:
[17] The use of drugs seriously impugns the integrity of racing, and in particular, the safety of horsemen and women and horses being driven at race meetings.
[18] We are concerned that the respondent has breached the rules so soon after obtaining her junior horsewoman’s licence. It is a period of only 3 and a half months during which she has had 6 drives. In addition, the breach occurred despite a previous conviction in the criminal courts for cannabis possession some 5 years ago.
[19] Ms Bishop’s contrition appeared to us to be genuine. She has expressed a willingness, indeed a determination, to deal with her cannabis issues. We explained to her that the consequences were likely to be severe were she before a judicial committee again on a drugs related charge. She said she understood this. We suggested that professional help might be required to help her address her issues and she indicated that she would seek this.
[20] We wish to assist the respondent in her efforts to rehabilitate herself, yet we also need to hold her accountable and to deter her and others from breaching this rule in the future. We have already emphasised the need for denunciation of her actions.
[21] We have found the schedule of recent decisions under r 512(1) with respect to cannabis to be very helpful. The harness cases demonstrate a suspension of around 6 months, together with a fine of up to $500, not to be uncommon. In thoroughbred racing jockeys tend to be disqualified, while track workers often receive a short period of suspension. We were concerned at the apparently anomalous decision in RIU v M (August 2011), where a penalty of only 2 months’ suspension was imposed. We suspected the level of cannabis recorded in that case to have been low. While the reported decision does not disclose the level, Mr Kitto made inquiries and advised us that it was only marginally above the 15 ng/ml level.
[22] By way of comparison with M, Ms Bishop’s level was very high. We accept her statement that this was the result of recent use. The fact that she was prepared to drive at a race meeting so soon after using cannabis is of particular concern to us. We do not view the fact that consumption was not on raceday or that the drug was not brought to the racecourse to be mitigating factors. Rather, this is the absence of aggravating factors.
[23] Personal mitigating factors are the respondent’s personal circumstances, including the fact she has 3 young children and is receiving a benefit, her ready admission of the breach, and that this is her first breach of the rules. The weight to be given to this last factor is tempered by the fact that she has held a licence in the industry for only a relatively brief period of time.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[24] We impose a suspension of the respondent’s junior horsewoman’s licence for a period of 6 months commencing on 28 June last, the day on which her licence was suspended under r 514(2). We have regard to her limited financial resources, although we note she has the means to be able to use cannabis, and refrain from the imposition of a financial penalty.
[25] The RIU did not seek costs but asked that the respondent meet the expense of the ESR analysis. Mr Kitto stated that it was appropriate that there also be a contribution to JCA costs. We order costs in the sum of $397.21. This comprises the ESR testing fee of $172.21 and a contribution of $225 to JCA costs, which are a little over $500.
hearing_type: Non-race day
Rules: 212(1)(g) and 226(2)(d)
Informant: Mr B Kitto - Racing Integrity Unit
JockeysandTrainer:
Otherperson:
PersonPresent: Mr M Davidson - Registrar
Respondent: Ms NM Bishop - Junior Horsewoman
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