Non Raceday Inquiry RIU v T Bishop – Written Decision dated 23 November 2016 – Chair, Mr T Utikere
ID: JCA14265
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 TENIELLE BISHOP
Respondent
Judicial Committee: Mr T Utikere (Chairman), Mrs N Moffatt (Committee Member)
Appearing: Mr S Irving (for the informant) – Ms T Bishop (as the respondent)
Venue: Judicial Room, Awapuni Racecourse
Date of Hearing: 19 November 2016
Date of Written Decision: 23 November 2016
DECISION OF JUDICIAL COMMITTEE
[1] Ms Bishop appears before this Judicial Committee on the following charge:
Information Number A4184
THAT on the 04th November 2016 at Foxton Racecourse, having been required by a Racing Investigator 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 liable to the penalty imposed pursuant to Rule 803 of the said rules.
[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] Ms Bishop confirmed that she understood Rule 656(3) and that she admitted the charge. We thus find the charge proved.
[4] Mr Irving presented a signed authority from the Racing Integrity Unit (RIU) General Manager Mr Godber to proceed with the charge against Ms Bishop. Copies of the Information, the appropriate notice to the various parties, and the appointment of the Judicial Committee were also tabled. Ms Bishop confirmed that she had received all of the relevant documentation and had had sufficient time to read through all of this documentation.
FACTS
[5] Mr Irving had filed an agreed Summary of Facts, as they relate to the charge before this committee. The content of the agreed Summary follows:
The respondent Tenielle Bishop is a Licensed Class C Trainer under the Rules of New Zealand Thoroughbred Racing. She is 26 years old and commenced her racing career as an apprentice jockey.
On Friday, the 04th November 2016, officials from the Racing Integrity Unit conducted random drug testing at the Foxton Racecourse. Ms BISHOP was one of the people randomly selected for testing and was served with the appropriate notice. Ms BISHOP provided a urine sample at 8.30am which returned a non-negative indicative reading for THC (Cannabis). The sample was forwarded to the ESR for analysis.
When interviewed on the day, Ms BISHOP explained that she had smoked cannabis with friends on the previous Saturday evening. She stated that she “had a couple of puffs on a joint at her mates place”.
On the 09th November the ESR confirmed that the urine sample provided by Ms BISHOP was positive to cannabis at a THC Acid level of 30ng/mL. On the scale of 15 – 300+ this reading is considered low range.
Ms BISHOP has had one previous charge for a positive to diuretics in April 2008 when she was an apprentice jockey.
[6] When given the opportunity to address the committee, Ms Bishop stated that she agreed with the circumstances that Mr Irving had outlined, and that her positive was a result of a stupid mistake during one night out with friends.
PENALTY SUBMISSIONS BY INFORMANT
[7] Mr Irving advanced the following submission points as to penalty:
The respondent Tenielle Christine Lynette Wikitoria BISHOP is a Licensed Class C Trainer under the Rules of New Zealand Thoroughbred Racing (NZTR).
She is 26 years old and is currently training several horses out of Foxton Racecourse.
She has been involved in the racing industry all her working life commencing her career as an apprentice jockey.
BISHOP has admitted a breach of the Rules in relation to the positive drug test returned at the Foxton racecourse on the 04th November 2016.
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.
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.
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 additional circumstances.
On this occasion Ms BISHOP was trackwork riding at the Foxton racecourse while the drug THC (Cannabis) was within her body.
It is submitted that a two month suspension from trackriding (backdated to the 05th November when she was ‘stood down’) and the cost of the ESR analysis of $187.50 (to the RIU) should be imposed.
Offending
The details of BISHOP’S offending are contained in the Racing Integrity Unit Summary of Facts.
Penalty Provisions
The penalty provisions for this matter are contained under 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 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,
Sentencing Principles
The four principles of sentencing can be summarised briefly:
Penalties are designed to punish the offender for his / her wrong doing. They are not meant to be retributive in the sense 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 similar 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.
All four principles apply in this matter.
Precedents
The following are recent decisions involving trackwork riders:
RIU v L S BURTON (23.09.16) – unlicensed trackwork rider tested positive to Cannabis (30ng / mL) receiving a six week suspension and $187.50 costs.
RIU v H L BORROWS (14.12.2015) – trackwork rider tested positive to Cannabis (no level detailed) receiving a two month suspension and costs of $187.50.
RIU v C HOLLIS (17.01.2015) - trackwork rider tested positive to Cannabis (210ng/mL) receiving a two and a half month suspension and costs of $187.50.
RIU v B A SWINBURNE (02.04.2014) – trackwork rider tested positive to Cannabis (73ng/mL) receiving a 5 week suspension and $200 fine.
Aggravating Factors
BISHOP has been involved in the racing industry, including as an apprentice jockey, for several years and knows the importance of maintaining integrity in racing.
As well as being a trackrider she is also holds a Class C (Owner/Trainer) Licence which adds the responsibility being ‘of good character’ and an expectation to maintain a higher standard of behaviour in relation to her employees, owners, peers and other trackriders.
As an apprentice jockey in 2008 BISHOP tested positive to Diuretics when tested on a race day at Trentham. She received a $500 fine.
Mitigating Factors
BISHOP has been fully co-operative with RIU staff throughout the investigation and prosecution process.
She has admitted the breach at the earliest possible stage and has shown remorse for her actions.
Her recorded THC level of 30ng/mL is considered low (the range being between 15 and >300 ng/mL) and is consistent with her explanation of when she last smoked Cannabis.
Conclusion
The RIU therefore seek a two month suspension from trackriding (backdated to the 05th November when she was ‘stood down’) and costs of the ESR analysis of $187.50 to the RIU.
[8] Mr Irving also referred the committee to the provisions of Rule 1106(1)(b), stating that the charge Ms Bishop was facing would only have a consequential effect on her trackwork riding, not her ability to train horses.
[9] In response to a question from the committee, Mr Irving stated that the RIU v Burton decision was a recent one and that the respondent in that matter returned a similar reading for which a six week suspension and ESR analysis costs were imposed. With reference to the other identified cases, he submitted that the level of the reading seemed to be the main consideration in determining penalty.
[10] He also clarified his position that Ms Bishop’s previous breach in 2008, relating to using diuretics, could be considered as an aggravating factor as she did not have a clear record under this rule.
PENALTY SUBMISSIONS BY RESPONDENT
[11] Ms Bishop had tabled a number of documents which the committee had taken the opportunity to read through. They included a written explanation that outlined the circumstances that led to this breach and references from local industry participants which sought to attest to the character of the respondent.
[12] She accepted that she had returned a ‘not negative’ to cannabis, and as such should receive a penalty for that. She accepted that as a Licensed Trainer, she should have been more professional, but that her inability to undertake trackwork riding would also result in a loss of income.
[13] She asked the committee to consider that the reading was low, and therefore consistent with her explanation as to how the breach came about. She also submitted that the RIU v Burton case had similarities to her offending and as such, that a six week period of suspension should be imposed on this occasion.
DECISION
[14] In coming to our decision we have carefully considered all of the submissions placed before us.
[15] When referring to the JCA Penalty Guidelines, there is no specified starting point, as each breach under this rule is fact and context dependent.
[16] There was an onus on Ms Bishop to ensure that she presented herself for riding in a drug-free state. She accepts that she returned a sample of her urine, which upon analysis had tested positive to cannabis.
[17] In submitting on penalty, the RIU identified four previous decisions. In determining penalty we consider there to be context parallels with RIU v Burton on this occasion. While the Burton decision notes that Burton was a habitual user, that is a point of difference with Ms Bishop’s offending. The low reading for Ms Bishop is consistent with the explanation that she has provided to the committee.
[18] While Ms Bishop does not have a clear record under this specific rule, we do not consider this an aggravating factor. The previous charge was in relation to use of diuretics, quite a different substance to cannabis. The committee also notes that such a substance had historically been permitted within the industry, whereas that has not been the case with cannabis. Her previous breach was also back in 2008, some eight years ago; accordingly we consider that a neutral factor in our approach to determining penalty.
[19] Ms Bishop accepts that as a Licensed Trainer, she should have been more professional. The RIU have submitted that her status as a Licensed Trainer requires her to be of good character, and that this is an aggravating feature of this offending. In the context of this breach, we do not view that as an aggravating feature. Ms Bishop has been charged in her capacity as a trackwork rider and the provision of Rule 1106(1)(b) provides that the relativity of this breach and her status as a Licensed Trainer can be treated as mutually exclusive.
[20] In mitigation, the committee notes Ms Bishop’s admission of the breach, her co-operation with the investigation process, and her record over recent years.
[21] Taking all matters into account we are satisfied that a period of suspension is the most appropriate means to act as a deterrent on this occasion. After considering all factors, the committee believes a six week period of suspension is appropriate.
PENALTY
[22] We reinstate Ms Bishop’s Trackwork Riding Licence as of 5 November 2016.
[23] Ms Bishop’s Trackwork Riding Licence is suspended for a period of six weeks from 5 November 2016, up to and including 17 December 2016.
COSTS
[24] The Respondent is also ordered to pay costs of $187.50 to the RIU for sample analysis costs. There will be no order for costs in favour of the JCA.
Tangi Utikere Nicki Moffatt
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 24/11/2016
Publish Date: 24/11/2016
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: 24/11/2016
hearing_title: Non Raceday Inquiry RIU v T Bishop - Written Decision dated 23 November 2016 - Chair, Mr T Utikere
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appealdecision: NO LINKED APPEAL DECISION
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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 TENIELLE BISHOP
Respondent
Judicial Committee: Mr T Utikere (Chairman), Mrs N Moffatt (Committee Member)
Appearing: Mr S Irving (for the informant) – Ms T Bishop (as the respondent)
Venue: Judicial Room, Awapuni Racecourse
Date of Hearing: 19 November 2016
Date of Written Decision: 23 November 2016
DECISION OF JUDICIAL COMMITTEE
[1] Ms Bishop appears before this Judicial Committee on the following charge:
Information Number A4184
THAT on the 04th November 2016 at Foxton Racecourse, having been required by a Racing Investigator 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 liable to the penalty imposed pursuant to Rule 803 of the said rules.
[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] Ms Bishop confirmed that she understood Rule 656(3) and that she admitted the charge. We thus find the charge proved.
[4] Mr Irving presented a signed authority from the Racing Integrity Unit (RIU) General Manager Mr Godber to proceed with the charge against Ms Bishop. Copies of the Information, the appropriate notice to the various parties, and the appointment of the Judicial Committee were also tabled. Ms Bishop confirmed that she had received all of the relevant documentation and had had sufficient time to read through all of this documentation.
FACTS
[5] Mr Irving had filed an agreed Summary of Facts, as they relate to the charge before this committee. The content of the agreed Summary follows:
The respondent Tenielle Bishop is a Licensed Class C Trainer under the Rules of New Zealand Thoroughbred Racing. She is 26 years old and commenced her racing career as an apprentice jockey.
On Friday, the 04th November 2016, officials from the Racing Integrity Unit conducted random drug testing at the Foxton Racecourse. Ms BISHOP was one of the people randomly selected for testing and was served with the appropriate notice. Ms BISHOP provided a urine sample at 8.30am which returned a non-negative indicative reading for THC (Cannabis). The sample was forwarded to the ESR for analysis.
When interviewed on the day, Ms BISHOP explained that she had smoked cannabis with friends on the previous Saturday evening. She stated that she “had a couple of puffs on a joint at her mates place”.
On the 09th November the ESR confirmed that the urine sample provided by Ms BISHOP was positive to cannabis at a THC Acid level of 30ng/mL. On the scale of 15 – 300+ this reading is considered low range.
Ms BISHOP has had one previous charge for a positive to diuretics in April 2008 when she was an apprentice jockey.
[6] When given the opportunity to address the committee, Ms Bishop stated that she agreed with the circumstances that Mr Irving had outlined, and that her positive was a result of a stupid mistake during one night out with friends.
PENALTY SUBMISSIONS BY INFORMANT
[7] Mr Irving advanced the following submission points as to penalty:
The respondent Tenielle Christine Lynette Wikitoria BISHOP is a Licensed Class C Trainer under the Rules of New Zealand Thoroughbred Racing (NZTR).
She is 26 years old and is currently training several horses out of Foxton Racecourse.
She has been involved in the racing industry all her working life commencing her career as an apprentice jockey.
BISHOP has admitted a breach of the Rules in relation to the positive drug test returned at the Foxton racecourse on the 04th November 2016.
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.
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.
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 additional circumstances.
On this occasion Ms BISHOP was trackwork riding at the Foxton racecourse while the drug THC (Cannabis) was within her body.
It is submitted that a two month suspension from trackriding (backdated to the 05th November when she was ‘stood down’) and the cost of the ESR analysis of $187.50 (to the RIU) should be imposed.
Offending
The details of BISHOP’S offending are contained in the Racing Integrity Unit Summary of Facts.
Penalty Provisions
The penalty provisions for this matter are contained under 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 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,
Sentencing Principles
The four principles of sentencing can be summarised briefly:
Penalties are designed to punish the offender for his / her wrong doing. They are not meant to be retributive in the sense 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 similar 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.
All four principles apply in this matter.
Precedents
The following are recent decisions involving trackwork riders:
RIU v L S BURTON (23.09.16) – unlicensed trackwork rider tested positive to Cannabis (30ng / mL) receiving a six week suspension and $187.50 costs.
RIU v H L BORROWS (14.12.2015) – trackwork rider tested positive to Cannabis (no level detailed) receiving a two month suspension and costs of $187.50.
RIU v C HOLLIS (17.01.2015) - trackwork rider tested positive to Cannabis (210ng/mL) receiving a two and a half month suspension and costs of $187.50.
RIU v B A SWINBURNE (02.04.2014) – trackwork rider tested positive to Cannabis (73ng/mL) receiving a 5 week suspension and $200 fine.
Aggravating Factors
BISHOP has been involved in the racing industry, including as an apprentice jockey, for several years and knows the importance of maintaining integrity in racing.
As well as being a trackrider she is also holds a Class C (Owner/Trainer) Licence which adds the responsibility being ‘of good character’ and an expectation to maintain a higher standard of behaviour in relation to her employees, owners, peers and other trackriders.
As an apprentice jockey in 2008 BISHOP tested positive to Diuretics when tested on a race day at Trentham. She received a $500 fine.
Mitigating Factors
BISHOP has been fully co-operative with RIU staff throughout the investigation and prosecution process.
She has admitted the breach at the earliest possible stage and has shown remorse for her actions.
Her recorded THC level of 30ng/mL is considered low (the range being between 15 and >300 ng/mL) and is consistent with her explanation of when she last smoked Cannabis.
Conclusion
The RIU therefore seek a two month suspension from trackriding (backdated to the 05th November when she was ‘stood down’) and costs of the ESR analysis of $187.50 to the RIU.
[8] Mr Irving also referred the committee to the provisions of Rule 1106(1)(b), stating that the charge Ms Bishop was facing would only have a consequential effect on her trackwork riding, not her ability to train horses.
[9] In response to a question from the committee, Mr Irving stated that the RIU v Burton decision was a recent one and that the respondent in that matter returned a similar reading for which a six week suspension and ESR analysis costs were imposed. With reference to the other identified cases, he submitted that the level of the reading seemed to be the main consideration in determining penalty.
[10] He also clarified his position that Ms Bishop’s previous breach in 2008, relating to using diuretics, could be considered as an aggravating factor as she did not have a clear record under this rule.
PENALTY SUBMISSIONS BY RESPONDENT
[11] Ms Bishop had tabled a number of documents which the committee had taken the opportunity to read through. They included a written explanation that outlined the circumstances that led to this breach and references from local industry participants which sought to attest to the character of the respondent.
[12] She accepted that she had returned a ‘not negative’ to cannabis, and as such should receive a penalty for that. She accepted that as a Licensed Trainer, she should have been more professional, but that her inability to undertake trackwork riding would also result in a loss of income.
[13] She asked the committee to consider that the reading was low, and therefore consistent with her explanation as to how the breach came about. She also submitted that the RIU v Burton case had similarities to her offending and as such, that a six week period of suspension should be imposed on this occasion.
DECISION
[14] In coming to our decision we have carefully considered all of the submissions placed before us.
[15] When referring to the JCA Penalty Guidelines, there is no specified starting point, as each breach under this rule is fact and context dependent.
[16] There was an onus on Ms Bishop to ensure that she presented herself for riding in a drug-free state. She accepts that she returned a sample of her urine, which upon analysis had tested positive to cannabis.
[17] In submitting on penalty, the RIU identified four previous decisions. In determining penalty we consider there to be context parallels with RIU v Burton on this occasion. While the Burton decision notes that Burton was a habitual user, that is a point of difference with Ms Bishop’s offending. The low reading for Ms Bishop is consistent with the explanation that she has provided to the committee.
[18] While Ms Bishop does not have a clear record under this specific rule, we do not consider this an aggravating factor. The previous charge was in relation to use of diuretics, quite a different substance to cannabis. The committee also notes that such a substance had historically been permitted within the industry, whereas that has not been the case with cannabis. Her previous breach was also back in 2008, some eight years ago; accordingly we consider that a neutral factor in our approach to determining penalty.
[19] Ms Bishop accepts that as a Licensed Trainer, she should have been more professional. The RIU have submitted that her status as a Licensed Trainer requires her to be of good character, and that this is an aggravating feature of this offending. In the context of this breach, we do not view that as an aggravating feature. Ms Bishop has been charged in her capacity as a trackwork rider and the provision of Rule 1106(1)(b) provides that the relativity of this breach and her status as a Licensed Trainer can be treated as mutually exclusive.
[20] In mitigation, the committee notes Ms Bishop’s admission of the breach, her co-operation with the investigation process, and her record over recent years.
[21] Taking all matters into account we are satisfied that a period of suspension is the most appropriate means to act as a deterrent on this occasion. After considering all factors, the committee believes a six week period of suspension is appropriate.
PENALTY
[22] We reinstate Ms Bishop’s Trackwork Riding Licence as of 5 November 2016.
[23] Ms Bishop’s Trackwork Riding Licence is suspended for a period of six weeks from 5 November 2016, up to and including 17 December 2016.
COSTS
[24] The Respondent is also ordered to pay costs of $187.50 to the RIU for sample analysis costs. There will be no order for costs in favour of the JCA.
Tangi Utikere Nicki Moffatt
Chairman Committee Member
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