Non Raceday Inquiry RIU v R Simpson – Decision dated 13 June 2018 – Chair, Mr R McKenzie

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decisiondate: 13/06/2018

hearing_title: Non Raceday Inquiry RIU v R Simpson - Decision dated 13 June 2018 - Chair, Mr R McKenzie

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BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH

IN THE MATTER of New Zealand Thoroughbred Racing Rules

IN THE MATTER of Information No.
A6420

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

Informant

AND RYAN SIMPSON of Christchurch, Licensed Trainer (Class B) / Trackwork Rider
Respondent

Date of Hearing: Wednesday, 6 June 2018

Venue: Riccarton Park, Christchurch

Judicial Committee: Mr RG McKenzie (Chairman), Mr DJ Anderson (Committee Member) 
Present: Mrs K R Williams, the Informant, Mr R Simpson, the Respondent, Mr A McKerrow, Racing Industry Chaplain
Registrar: Mr D M Wadley

Date of Decision: 13 June 2018

REASONS FOR PENALTY DECISION OF JUDICIAL COMMITTEE

THE CHARGE
[1] Information No. A6420 alleges that Mr Simpson “on the 23rd day of May 2018, at the Riccarton Racecourse, Christchurch, 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 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”.

[2] Mrs Williams produced a letter dated 31 May 2018 from Mr M R Godber, General Manager for the Racing Integrity Unit, authorising the filing of the information pursuant to Rule 903(3)(d).

[3] The information was subsequently served on Mr Simpson on 31 May 2018. Mr SIMPSON signed the Statement by the Respondent indicating that he admitted the breach

[4] Mr Simpson was present at the hearing of the information. The charge was read to him, together with the relevant Rules, and he indicated that he understood the Rules and the charge and confirmed that he admitted the charge. The charge was found proved accordingly.

THE RULE
[5] The relevant Rule is Rule 656(3) which provides as follows:
A Rider, or any other 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, 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. [Amended 1 December 2013] [Amended 1 August 2014].

FACTS
[6] Mrs Williams presented the following written Summary of Facts:

1. The Respondent, Ryan Simpson, is a Class B Trainer Licenceholder under the New Zealand Rules of Thoroughbred Racing. Mr Simpson has held a licence since 2003 when he was first licensed as an apprentice.
2. On the 23rd and 24th May 2018 drug testing was conducted at Riccarton Racecourse. Fifteen people were selected for testing for drugs.
3. 3. Mr Simpson was served with a Drug Testing Notification Form by Racing Investigator Mrs Kylie Williams at 0910hrs on 23 May 2018.
4. Mr Simpson presented for drug testing at the TDDA (The Drug Detection Agency) van at 0916hrs and supplied the required urine sample, U276636, to the authorised agent Ms J Dollimore (TDDA).
5. Ms Dollimore, TDDA, advised that Mr Simpson’s sample showed a non-negative result for THC (Cannabis).
6. Mr Simpson was interviewed and advised of the non-negative result and that the sample was to be forwarded to ESR for analysis.
7. Mr Simpson admitted having smoked Cannabis the night before due to personal circumstances.
8. Mr Simpson immediately voluntarily stood down from all safety sensitive activities involving horses.
9. On the 28th of May Mr Simpson was issued with an official stand down letter under Rule 657(1)(a) & (b) and advised that his licence was automatically withdrawn until such time as the Judicial Committee issues a substantive decision in relation to the information filed and that he will be required to produce a clear sample before it will be reinstated under rule 657(2)(b).
10. Mr Simpson was given a copy of the positive result to THC (Cannabis) as reported by ESR. The report advised the result from sample U276636 was positive with a level of >300ng/ml.
11. Mr Simpson was interviewed by Dianna Young, AOD Clinician to the Racing Industry, on 30th May 2018 (the written report was produced to the Committee).
12. Mr Simpson was served with an Information alleging a breach of Rule 656 (3) on 31st of May 2018 and he admitted the breach.
13. Mr Simpson has not previously been charged with a breach of this Rule.

PENALTY SUBMISSIONS OF INFORMANT
[7] Mrs Williams presented the following written submissions relating to penalty:

1. Mr Simpson is a Class B Trainer Licenceholder and has pleaded guilty to a breach of Rule 656(3) for supplying a sample of his urine which was found upon analysis to contain the controlled substance THC acid (Cannabis) at a level of >300ng/ml.
2. The purpose of the 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 licence holders that are engaged in Safety Sensitive Activities are drug free. Mr Simpson as well as having a Trainers licence also works for a trainer and rides trackwork.
3. The safety and welfare of all licence holders and horses is paramount. Testing has been conducted since 1995 and licence holders are aware there is an absolute obligation under the Rules to present themselves free of the influences of any drugs. All participants 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. Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975.
5. Historical penalties for breaches of the rules show some divergence dependent on the type of drug, the amount of the drug in the system and other mitigating and aggravating factors.
6. On this occasion Mr Simpson was handling and riding horses at the track at the Riccarton Racecourse while the drug THC (Cannabis) was in his body.
7. Sentencing Principles -

The four principles 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. In regard to the fourth principle Mr Simpson has been assessed by Dianna Young, AOD (Alcohol and Other Drug) Clinician to the Racing Industry, on 30th May 2018. This report is very positive and should be taken into account with sentencing. Mr Simpson should be given a reduced sentence provided he continues positively with any programme suggested and the RIU receives confirmation of this.

 8.   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 T Askew 31 August 2017
Subject: Trackwork Rider – controlled substance THC acid (Cannabis) – >300ng/ml – suspended for six weeks and costs of $187.50 to the RIU.

R.I.U. v L Burton 8 October 2012
Subject: Unlicensed Trackwork Rider – controlled substance THC acid (Cannabis) – 30ng/ml – suspended for six weeks and costs of $187.50 to the RIU.

R.I.U v N Bishop 1 August 2012
Subject: Junior Horsewoman – controlled substance THC acid (Cannabis) 300ng/ml – suspended for 6 months, costs $397.21. Extract from JCA decision: “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.”

R.I.U. v I J Brownlee 24 December 2015
Subject: Open Horseman - controlled substance THC acid (Cannabis) 73ng/ml – second offence suspended for 9 months, costs $187.50. Extract from JCA decision: “Both the informant and respondent made reference to the relatively low level of THC referred to in the Analyst Certificate (73ng/ml). We have not placed too much weight on this submission given that according to the Analyst Certificate “THC Acid levels do not indicate impairment or when or how much Cannabis is used. …and send a clear message to other industry participants that there is no place for illegal substance use within the industry.”

R.I.U. v G J Thomas 17 July 2014
Subject: Open Horseman - controlled substance THC acid (Cannabis) 220ng/ml – suspended for 5 months, costs $172.20. Extract from JCA decision: “There is a need to hold Mr Thomas accountable and to denounce his actions. There is also a need to impose a penalty that emphasises general deterrence.”

  9.   It is acknowledged that Mr Simpson has admitted the breach at the first opportunity and he has been very co-operative during this investigation.

10.   Mr Simpson has no previous breaches of this Rule

11.   Mr Simpson 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.
Conclusion

12.   It is submitted that a six-weeks suspension of Mr Simpson’s Class B Trainer’s licence, backdated to the 23rd of May 2018 when Mr Simpson voluntarily stood down from safety sensitive activities, should be imposed. The suspension should be reduced to four weeks provided Mr Simpson completes any course recommended by Dianna Young, AOD Clinician to the Racing Industry. Mr Simpson is also required to provide a clear sample before his licence is reinstated.
Costs

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

SUBMISSIONS OF RESPONDENT
[8] Mr Simpson said that he realised that it was important that racing be drug-free. He explained that had had “a bad couple of weeks” leading up to his offending and had made “a bad choice”. Drug use is not something he makes a habit of, a fact which, he submitted, his good record reflected. He regrets what has happened and is prepared to accept the penalty imposed by the Committee.

[9] He confirmed that he was returning to Waikato where he has a job arranged with David Green, Licensed Trainer. He had worked for him previously. He had not been happy in his employment in Christchurch, which was a disappointment to him, he said. He had been completely open with Mr Green regarding this breach.

[10] Mr Simpson confirmed to the hearing that he was very happy to undergo the treatment plan laid out by Dianna Young.

THE REPORT FROM DIANNA YOUNG
[11] Mr Simpson had been referred to Dianna Young, AOD Clinician to the Racing Industry. A “clinical assessment” was conducted and, following that, an “appropriate treatment plan” was proposed. A written report has been made available to the Committee. A number of observations and recommendations in that report are relevant to our consideration of penalty.

[12] Mr Simpson is aged 30 years and has been an occasional user of Cannabis since the age of 20 – smoking Cannabis on “an infrequent and recreational basis” of approximately 1-2 times yearly. Prior to his most recent use, Mr Simpson states that he smoked one joint over a period of 4-5 days, the last date of use being the day before being tested.

[13] Mr Simpson has a good future in the racing industry. He speaks of his love for the horses and his desire to focus on work and the future. He reports that he is good at what he does and wants to get back into what he does best. He has already made plans to return to the Waikato for a new job.

[14] Mr Simpson has agreed to undergo a treatment plan that has been put in place and appeared enthusiastic to accept it and engage with the process.

[15] In Dianna Young’s opinion, Mr Simpson is remorseful for his use of Cannabis. He has had a series of “stressful life events” recently which do not provide an excuse but do shed more light on his situation.

[16] It is recommended that Mr Simpson be supported, encouraged and educated through his difficult time by participating in this treatment plan. This could run concurrently with his new job which could likely be the beginning of a positive turn for Mr Simpson.

[17] Mrs Williams has submitted that the term of suspension should be reduced to 4 weeks provided that Mr Simpson completes the treatment plan put in place by Ms Young.

THE PENALTY RULE
[18] The penalty Rule is Rule 803 (3) which provides as follows:
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,
provided that if the Licenceholder committing an alcohol related breach is a Trainer and it is that Trainer’s first offence under these Rules in relation to drugs or alcohol from the date Rule 803(3) came into effect, then that Trainer may be fined a sum not exceeding $50,000 but shall not be suspended or disqualified for that first breach.

REASONS FOR DECISION
[19] The Committee was impressed by the apparently genuine remorse shown by Mr Simpson. The Committee accepts that he is not a regular drug user and, further, that prior to the offence he had been under considerable pressure in his private life. That pressure led him to conduct which, we accept, was out of character for him.

[20] The Committee is aware that, in recent times, a Cannabis breach by a trackwork rider seems to have been met, in most cases, with a term of suspension of 6 weeks. Significantly, this is the penalty submitted by Mrs Williams in her penalty submissions.

[21] On that basis, we are satisfied that a suspension of Mr Simpson’s Class B trainer’s licence for a period of 6 weeks is an appropriate penalty in this case. This takes into account the mitigating factors – Mr Simpson’s early guilty plea and his previous good record.

[22] It has been submitted to us by Mrs Williams that the Committee consider a suspension of 4 weeks on the condition that Mr Simpson undergo the treatment plan laid out by Dianna Young, AOD Clinician to the racing industry. Mr Simpson has indicated a willingness to do so and we accept that his willingness is genuine. We consider that this does warrant consideration when it comes to the ultimate penalty in this case.

[23] The important factors to be taken into account by a Judicial Committee in deciding penalty , some of which were highlighted by Mrs Williams in her penalty submissions, include the need to rehabilitate the offender. That is an important consideration in this case. Mr Simpson needs to be given every encouragement to pursue his, what is an obvious passion, for the racing industry.

[24] With rehabilitation in mind, but not ignoring the fact that punishment and deterrence also have an important part in sentencing, the Committee in imposing a penalty of 6 weeks suspension from 23 May 2018 (expiring after 4 July 2018), imposes that penalty on Mr Simpson but orders that the period is to be reduced to 4 weeks from the former date provided that Mr Simpson strictly complies, up to 4 July 2018, with the terms of the treatment plan put in place by Dianna Young.

[25] If Mr Simpson fails to comply any of the terms of that treatment plan, then the full term of suspension - that is to say, 6 weeks - is to be served by him.

COSTS
[26] There will be no order for costs. However, Mr Simpson is ordered to pay to the Racing Integrity Unit the sum of $187.50, being the ESR costs for analysis of the sample.

R G McKenzie
CHAIR

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