Non Raceday Inquiry RIU v T J Thorby – Decision dated 3 March 2017 – Chair, Mr A J Godsalve
ID: JCA11493
Decision:
Non Raceday Inquiry RIU v T J THORBY
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT - Informant
And Tremain Jonathan Thorby, Licensed Advance Amateur Horseman
Informant: Mr A Cruikshank – Racing Investigator
Respondent: Mr T J Thorby - Licensed Advance Amateur Horseman
Rules: 512(1), 1003
Information: A7140
Judicial Committee: Mr A J Godsalve, Chair – Mr A J Dooley, Committee Member
Appearing: Mr T J Thorby, Respondent
Mr R Rao, for Mr Thorby
Mr Oscar Westerlund, Racing Integrity Unit – on behalf of the Informant
Venue: Alexandra Park Raceway
Date of Hearing: 3 March 2017
Date of Decision: 3 March 2017
DECISION OF JUDICIAL COMMITTEE
The Charge
Information A7140 alleges that Tremain Jonathan THORBY-
On the 22nd day of September 2016, at the Cambridge Raceway. Cambridge, having been required by an Investigator to supply a sample of urine in accordance with Rule 512(1) of the New Zealand Rules of Harness Racing, had urine which was found, upon analysis, to contain the controlled drug Methamphetamine and Amphetamine as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule AND is therefore liable to the penalty or penalties which may be imposed pursuant to Rule 1003(1) of the said Rules.
Plea
On having the charge read to him at the hearing Mr Thorby stated that he understood the Rule and that he admitted the breach.
The Rules
Rule 512(1) provides-
“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 a supply a sample which is found upon analysis to control 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”.
Rule 1003 provides-
(1) A person who commits a breach of any Rule shall ( subject to the Provisions of Rule 111(1), 113(5), 451(3), 507(3), 1001 or 1004 hereof ) shall be liable to the following penalties:
(a) A fine not exceeding $10,000; and/or
(b) Suspension from holding or obtaining a license for a period not exceeding 12 months; and/or
(c) Disqualification for a period not exceeding 12 months;
Background
This matter has its foundation on the 22nd September 2016 when the Respondent was required by a member of the Racing Integrity Unit to supply a sample of his urine.
As a result of that sample being tested, an Information (A7140) was presented. Details of that Information and subsequent matters follow-
That Information alleged a breach of Rule 512(1) of the New Zealand Rules of Harness Racing.
A date for the hearing of the charge arising out of that Information was set by the Executive Officer of the Judicial Control Authority-that being 27 October 2016.
Prior to that date, the Respondent Mr Thorby appointed Mr Rajiv Rao, Solicitor, to act on his behalf and to be supplied with any and all information relative to this matter. A copy of that authority has been supplied to the Committee.
On 19 October 2016-per fax-Mr Rao sought an adjournment of the hearing which had been set for 27 October, to allow the Respondent to take further advice in relation to the alleged breach. Neither the RIU or the JCA had any objection to this adjournment.
On 10 November 2016 a Teleconference took place involving:
Mr AJ Godsalve - JCA Chairperson
Mr AJ Dooley - JCA Panellist
Mr A Cruikshank - RIU (Informant)
Mr R Rao - Solicitor for the Respondent
Mr Rao informed the conference that his client, Mr Thorby, disputed the results of the analysis of the sample taken on 22 September 2016. Mr Cruikshank stated that the RIU had already been contacted by Mr Rao and had no objection to arranging for the ‘B’ sample to be forwarded to a laboratory in Christchurch, as requested.
Mr Rao asked that a further Teleconference be held when the results of that testing were known to him. The Chairman advised Mr Rao to notify the Executive Officer of the JCA when the results were available, and if his client was in a position to indicate if he would defend or admit the breach.
On 9 December 2016-by email-Mr Rao advised the Executive Officer of the JCA that the testing of the ‘B’ sample had been completed; and that the re-test did not contradict the initial analysis results. Further, Mr Rao advised that his client had not confirmed his intentions relative to a plea in this matter. Mr Rao suggested a further Teleconference between the parties.
On 15 December 2016 a further Teleconference involving the same participants as that on 10 November took place.
The relevant points from this conference call were
(a) Mr Rao was asking for a further adjournment, as he had forwarded letters on behalf of his client to ‘experts’ in forensic investigations.
These letters were in relation to the results of both the original analysis and the re-test of the ‘B’ sample.
(b) Mr Cruikshank, for the RIU, stated that he did not object to a further adjournment.
(c) Mr Rao committed to advising the Executive Officer, JCA, when he was in a position to proceed.
This matter was further adjourned.
Hearing
Following the above adjournment various communications between the parties resulted in an agreement that this matter would be heard at 1pm, 3 March 2017, at Alexandra Park, Auckland.
Documents
The following have been submitted as relevant to this matter:
1. TDDA – Notification of Drug Confirmation Results
2. ESR - Analysis confirmation
3. RIU - Authority to lodge Information
4. Copy of Information A7140
5. Copy Service of Information
6. HRNZ - Tremain Thorby Licence Status, drives to date
7. Authority to Act- Appointment of Mr Rao by T J Thorby
8. Letter dated 19 October 2016- Mr Rao advises request for adjournment
9. Minutes of Teleconference 10 November 2016
10. Letter dated 9 December 2016 – Mr Rao advising re-test of ‘B’ sample not contradictory to original test
11. Minutes of Teleconference 15 December 2016
Parties to this hearing have acknowledged that the above documents are in existence and have no objection to them being included as documentary evidence.
Summary of Facts-RIU
On Thursday 22nd September 2016, officials from the Racing Integrity Unit conducted routine drug testing of horsemen at the Harness Racing Waikato race meeting at the Cambridge Raceway in Cambridge.
The drug testing was conducted in the specialist workplace drug testing van by the Drug Detection Agency (TDDA).
Tremain Jonathan Thorby was one of ten Horsemen randomly selected for testing and was served the appropriate notice at 5.13pm by an Investigator.
Mr Thorby presented himself at 6.43pm and provided the required urine sample at 6.47pm. The sample was given the unique number U248463 and forwarded to the ESR the following day by a Drug Detection Agency authorised agent of the Racing Integrity Unit.
On Tuesday 27th September 2016, the Racing Integrity Unit was advised, in writing, that the sample provided by Mr Thorby had, on analysis, been found to contain the controlled substances Methamphetamine and Amphetamine.
A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 514(2) (a) and (b) were served on Mr Thorby on Wednesday 28th day of September 2016.
When spoken to Mr Thorby stated that he had never used Methamphetamine but was in the presence of a couple of friends who were using Methamphetamine about 3 days prior to the test being undertaken.
Tremain Jonathan Thorby is a licensed Advanced Amateur Horseman based in Papakura. He is employed on a full-time basis by Licensed Trainer Mr Tony Herlihy.
He is married with two children and has no previous history of offending.
Submissions, including Penalty Submissions - Mr Rao for Mr Thorby
Overview
1. Mr Thorby is a Licensed Advanced Amateur Horseman who has been charged with a breach of Rule 512(1) following a drug test conducted on 22 September 2016 at Cambridge Raceway.
2. Counsel confirms that the charge will be formally admitted at the hearing scheduled on 3 March 2017.
3. The Summary of Facts is accepted with the sole exception of the admission to being in the presence of friends who were using Methamphetamine. That point can be addressed further at the hearing if required.
# At the hearing the above matter was addressed by the Committee. In answer to a question from the Committee Mr Thorby stated that he had not made the statement referred to when spoken to by the RIU Investigators. The Committee made the point that this hearing was proceeding on the basis that is was an ‘admitted breach’, however for clarity is was necessary to confirm whatever assertions Mr Thorby was making about the conversation that had taken place when he was initially spoken to.
Personal Circumstances
4. Mr Thorby is 48 years old and resides in Pahurehure with his wife and their two young children. The family is of modest financial means and their main source of income is Mr Thorbys full-time employment as stable foreman at Strike Won Racing Stables in Ardmore.
5. A reference from Mr Thorby’s employer Mr Tony Herlihy MNZM for whom he has worked for the past 11 years is annexed at ‘A’. It is anticipated that several other references will be available by the time of the hearing.
6. Mr Thorby has enjoyed a degree of success as an amateur driver and it is submitted that he is well regarded in the harness industry. Mr Thorby has had considerable success as an Amateur Driver; this breach for him will result in a significant fall from grace.
The breach
7. As evidenced by his plea, Mr Thorby admits that he supplied a sample of urine at race day on 22 September 2016 which was found on analysis to contain Methamphetamine and Amphetamine. He accepts that ESR’s analysis is sound following analysis of the reference sample by Canterbury Health Laboratories.
8. Mr Thorby is adamant that he has never knowingly consumed the substances in question. He has reviewed his medical notes and prescription history from his doctor and has been unable to find anything that might explain the positive result.
9. Accordingly, no explanation is able to be advanced for the positive result except for unintentional consumption through lacing or spiking of Mr Thorby’s food or drink.
Mitigating Factors
Guilty plea
10. Mr Thorby has admitted the breach and will confirm his plea at the hearing.
11. It is acknowledged that Mr Thorby’s guilty plea has not come at the earliest opportunity. However, as previously acknowledged by the Committee, the charge is serious and carries potentially significant penalties. In light of those consequences and his lack of knowledge as to why a positive was returned, it is understandable for Mr Thorby to have explored his options before formally admitting the charge.
Previous good record
12. Mr Thorby has no previous relevant breaches of the Rules. He was first licensed in 1993 and is accordingly entitled to call upon his lengthy previous good record.
13. It is further understood that Mr Thorby has previously been subjected to random drug tests while driving and has returned negative results on every previous occasion.
Co-operation with authorities
14. Mr Thorby willingly co-operated with the drug testing procedure and made no attempt to evade the process. He also voluntarily stood himself down from driving on 22 September 2016 prior to the stand-down notice being served on 27 September 2016.
Submission as to penalty
15. It is accepted that a breach involving drugs of this nature will call for a penalty that provides not only specific but also general deterrence.
16. In the present case, Counsel agrees with the submission of the Informant that a suspension of 10 months should be imposed. It is submitted that any suspension should be backdated to 27 September 2016 when Mr Thorby was stood down.
17. Counsel relies on the case of RIU v IJM Brownlee (29 June 2012) which involved a Public Trainer and Open Horseman who gave a sample which tested positive for THC, Methamphetamine and Amphetamine. Mr Brownlee was suspended for 12 months and ordered to make a modest contribution to the costs of the Informant and the Authority.
18. In Brownlee the Committee saw no need to deprive the respondent of his industry related livelihood completely which related in suspension rather than disqualification being ordered. A similar factor exists in this case, as Mr Thorby works full-time as a stable foreman in racing stables owned by a licensed Public Trainer.
19. It is understood that the Informant seeks reimbursement of the costs of analysis of $187-50 to which Mr Thorby has no objection.
Included in the submissions above is a character reference from Mr Tony Herlihy, detailing his employment and personal connection with Mr Thorby. At the commencement of the hearing Mr Rao submitted two further testimonials, from Mr R Carr, and Mr T Vince.
Penalty Submissions- RIU
The Respondent Tremain Jonathan Thorby is a Licensed Advanced Amateur Horseman. He has been involved in the racing industry for all his adult life.
He has held various Horseman and Training Licenses since 1993. He is aged 48 years, date of birth 11 October 1968.
He has admitted a breach of the Rules in relation to the positive drug test undertaken on 22nd September 2016 at the Cambridge Raceway in Cambridge.
New Zealand Harness Racing has been drug testing industry participants for a number of years and during that time there has been a growing awareness that there is an absolute obligation on those driving horses to present themselves free of the influences of any drugs.
All Horsemen are aware of the policy and 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.
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.
On this occasion Mr Thorby presented himself and drove at the Harness Racing Waikato meeting while the drugs Methamphetamine and Amphetamine were within his body.
Methamphetamine is a Class A controlled drug and Amphetamine is a Class B controlled drug as defined in the Misuse of Drugs Act 1975.
The mitigating factors are that Mr Thorby has
(a) Admitted the breach
(b) Voluntarily stood himself down from driving from the date of the initial indicative test- 22 September 2016.
There are no aggravating factors.
It is submitted that a period of 10 months suspension of his Horseman’s Licence and the cost of the analysis of $187-50 (to the RIU) be imposed.
In support of this I refer to the following cases-
RIU v IJ BROWNLEE (24/12/15) Public Trainer and Open Horseman tested positive to THC (Cannabis) 73ng/ml. Suspended for 9 months plus costs.
RIU v GJ THOMAS (17/07/14) Open Horseman tested positive to THC Acid. 220ng/ml. Good character, no previous drug rule breaches, just over 5 months suspension. No fine.
RIU v NN BISHOP (1.08.12) Junior Horsewoman tested positive to THC Acid. In excess of 300 ng/ml. 6 months suspension, no fine.
RIU v IJ BROWNLEE (29.06.12) Public Trainer and Open Horseman tested positive to Methamphetamine, Amphetamine, and THC Acid. Suspended 12 months plus costs.
Reasons for Penalty
1. The Committee has carefully considered the facts and submissions lodged by the Informant and the Respondent.
2. The mitigating factors are that
(a) Mr Thorby has admitted the breach. We do not attach any importance to the fact that the Respondent has requested a further testing of the subject sample and has delayed his formal admission until today. Clearly it is his prerogative to do so. It is to his credit that he cooperated fully with the RIU Investigators when approached to supply a sample of his urine.
(b) Mr Thorby has held various licences during a quite extensive career in harness racing in New Zealand, and has no prior history of offending in respect of drug matters.
(c) We have due regard to the fact that he is a mature man engaged in full time employment within the harness industry, and that he is married with children. We are advised that Mr Thorby derives his sole income from that employment.
3. The aggravating factors are
(d) This breach results from a test conducted on a raceday when Mr Thorby was engaged in driving horse/s in races when other people and horses may have been placed at risk.
(e) Harness Racing New Zealand have made it clear that the use of drugs seriously impugns the integrity of racing, and more particularly the safety of horsemen engaged in driving at race meetings and trials. The purpose of the Rules in relation to testing was therefore quite plain. We point out that Methamphetamine is a Class A drug and the consequences of it being used when other industry participants and horses cannot be understated.
We are called upon to impose a penalty upon Mr Thorby following his admission of a charge of providing a sample of urine which, on analysis, has tested positive for Methamphetamine and Amphetamine.
There is no evidence before us as to the reason he has produced a positive to those drugs.
It has been submitted by the Respondent that there is no explanation which is able to be advanced for these positive results except for the unintentional consumption through his food or drink undergoing lacing or spiking.
We decline to speculate as to the veracity of that statement since there has been no evidence or testimony before us which would substantiate that claim.
The fact is that Mr Thorby has admitted the breach. It is clearly a breach of the Rule for an industry participant to have Methamphetamine and Amphetamine in their system, and they are to be penalised accordingly if such drugs are found on analysis to be in their system.
There is a clear need for Judicial Committees to impose penalties which maintain integrity and give the public confidence in thoroughbred and harness racing and which act as a deterrent to others in the general racing industry.
Rule 1003 provides for a variety of penalties which may be imposed following such a breach.
Disqualification for a period not exceeding 12 months.
Disqualification has the effect of removing the respondent from the activity he or she has been engaged in, to the extent that the person cannot enter upon a racecourse, stable or other training establishment; and clearly from engaging in whatever activity they had been engaged in.
In considering this penalty in Mr Thorby’s case we have looked at a number of cases in the Thoroughbred racing code.
Some of these are-
Jockey (C) – disqualified for 5 months in 2006, tested positive for Methamphetamine
Jockey (C) - disqualified for 8 months in 2009- tested positive for Methamphetamine
Jockey (W) – disqualified for 14 months in 2010- tested positive for Methamphetamine
Jockey (I) - disqualified for 18 months in 2010- tested positive for Methamphetamine
Jockey (I) - disqualified for 12 months in 2013 – tested positive for Methamphetamine
Jockey (C) - disqualified for 12 months in 2015- tested positive for Methamphetamine
These cases are referred to as an indication of the seriousness breaches of the drug Rules in racing generally are treated, especially those involving Methamphetamine. We do not refer to these cases in any way as setting precedents for harness matters as the Rules, penalties and circumstances could and often are dissimilar to harness matters. Disqualifications of those people referred to meant that their ability to earn any income from racing was terminated. In some cases this involved substantial earning capacity given their prior success. It is a fact that all of the people in Thoroughbred racing-jockeys and trackwork riders-who have appeared on charges involving Methamphetamine have been disqualified for varying periods.
There have not been any Harness racing licensees who have been disqualified. In fact, the case RIU v Brownlee (2012) referred to by both the Informant and Respondent is the only matter to date in the Harness industry involving Methamphetamine and Amphetamine. As stated in Mr Brownlees case, he was a licensed public trainer and driver. As such he was able to drive in races for reward and also to train horses for any person, again for reward. His suspension for 12 months would have resulted in quite a severe financial impact irrespective of how successful he may have been previously.
We do not consider this breach warrants Mr Thorbys disqualification. This would result in him being unable to be employed in his present position with Mr Herlihy-or any other trainer-or be employed in any manner in the industry. We do not believe this breach warrants a penalty that would impact upon Mr Thorby or his family to that extent.
A fine not exceeding $10,000 and or suspension from holding or obtaining a licence for a period not exceeding 12 months
Fine – There are no precedents in either code where a breach of the Rules involving Methamphetamine and Amphetamine has resulted purely in a fine. It is clear that such a breach must result in the respondent being removed from their industry activity for a period of time, and we therefore do not intend to deal with this matter by way of a fine only.
Suspension – Mr Thorby is currently licensed as an Advanced Amateur Driver. As such he is entitled to drive in races, however as an amateur he does not get paid to do so. Neither does he partake in any percentages of stakemoney which horses he drives attract by their finishing place.
A suspension of Mr Thorbys licence therefore would prevent him to drive in races and it would allow him to carry on his employment with Mr Herlihy or another trainer. The impact on Mr Thorby financially would be nil as he does not get paid for what his licence allows him to do. We note that given the number of drives Mr Thorby has had over the past 3 seasons, suspension would result in him missing between 1 and 2 drives per month.
Penalties imposed by Judicial Committees must be meaningful. We do not consider that a suspension alone in Mr Thorbys case would amount to a meaningful penalty.
For that matter we intend to impose a suspension of his licence along with a fine to act as a deterrent to others. Such fine must be sufficient to have an impact on Mr Thorby. We have made reference to a number of other racing participants who have suffered financial impacts due to their transgression of drug Rules, and believe for consistency Mr Thorby should be similarly impacted.
Penalty
It is appropriate that Mr Thorby should bear the cost of the original analysis of the sample being $187.50 and we order that he pay that amount to the RIU.
The starting point for a suspension-as per the Rule-is 12 months. We take into account Mr Thorbys admission of the breach and his clear record to date.
Mr Thorbys licence to drive in races is therefore suspended from the date of his stand down- 28 September 2016, until after racing on 28 July 2017-10 months.
In addition, we impose a fine of $2000 on Mr Thorby. The Committee is of the opinion that a fine needs to be imposed to act as a deterrent and send a clear message to other industry participants that there is no place for illegal substances within the industry, particularly classified drugs such as Methamphetamine and Amphetamine.
We understand that it is the role of the RIU to require Mr Thorby to undergo a further test and provide a clear sample prior to the completion of his term of suspension if he intends to resume raceday driving.
Costs
Apart from the matter of the analysis costs already dealt with the RIU have made no submission of costs.
This matter is being heard on a raceday. It JCA Policy to wherever possible deal with admitted breaches on racedays, and therefore there will be no order for costs.
AJ Godsalve AJ Dooley
Chair Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 06/03/2017
Publish Date: 06/03/2017
JCA Decision Fields (raw)
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hearing_title: Non Raceday Inquiry RIU v T J Thorby - Decision dated 3 March 2017 - Chair, Mr A J Godsalve
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
Non Raceday Inquiry RIU v T J THORBY
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT - Informant
And Tremain Jonathan Thorby, Licensed Advance Amateur Horseman
Informant: Mr A Cruikshank – Racing Investigator
Respondent: Mr T J Thorby - Licensed Advance Amateur Horseman
Rules: 512(1), 1003
Information: A7140
Judicial Committee: Mr A J Godsalve, Chair – Mr A J Dooley, Committee Member
Appearing: Mr T J Thorby, Respondent
Mr R Rao, for Mr Thorby
Mr Oscar Westerlund, Racing Integrity Unit – on behalf of the Informant
Venue: Alexandra Park Raceway
Date of Hearing: 3 March 2017
Date of Decision: 3 March 2017
DECISION OF JUDICIAL COMMITTEE
The Charge
Information A7140 alleges that Tremain Jonathan THORBY-
On the 22nd day of September 2016, at the Cambridge Raceway. Cambridge, having been required by an Investigator to supply a sample of urine in accordance with Rule 512(1) of the New Zealand Rules of Harness Racing, had urine which was found, upon analysis, to contain the controlled drug Methamphetamine and Amphetamine as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule AND is therefore liable to the penalty or penalties which may be imposed pursuant to Rule 1003(1) of the said Rules.
Plea
On having the charge read to him at the hearing Mr Thorby stated that he understood the Rule and that he admitted the breach.
The Rules
Rule 512(1) provides-
“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 a supply a sample which is found upon analysis to control 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”.
Rule 1003 provides-
(1) A person who commits a breach of any Rule shall ( subject to the Provisions of Rule 111(1), 113(5), 451(3), 507(3), 1001 or 1004 hereof ) shall be liable to the following penalties:
(a) A fine not exceeding $10,000; and/or
(b) Suspension from holding or obtaining a license for a period not exceeding 12 months; and/or
(c) Disqualification for a period not exceeding 12 months;
Background
This matter has its foundation on the 22nd September 2016 when the Respondent was required by a member of the Racing Integrity Unit to supply a sample of his urine.
As a result of that sample being tested, an Information (A7140) was presented. Details of that Information and subsequent matters follow-
That Information alleged a breach of Rule 512(1) of the New Zealand Rules of Harness Racing.
A date for the hearing of the charge arising out of that Information was set by the Executive Officer of the Judicial Control Authority-that being 27 October 2016.
Prior to that date, the Respondent Mr Thorby appointed Mr Rajiv Rao, Solicitor, to act on his behalf and to be supplied with any and all information relative to this matter. A copy of that authority has been supplied to the Committee.
On 19 October 2016-per fax-Mr Rao sought an adjournment of the hearing which had been set for 27 October, to allow the Respondent to take further advice in relation to the alleged breach. Neither the RIU or the JCA had any objection to this adjournment.
On 10 November 2016 a Teleconference took place involving:
Mr AJ Godsalve - JCA Chairperson
Mr AJ Dooley - JCA Panellist
Mr A Cruikshank - RIU (Informant)
Mr R Rao - Solicitor for the Respondent
Mr Rao informed the conference that his client, Mr Thorby, disputed the results of the analysis of the sample taken on 22 September 2016. Mr Cruikshank stated that the RIU had already been contacted by Mr Rao and had no objection to arranging for the ‘B’ sample to be forwarded to a laboratory in Christchurch, as requested.
Mr Rao asked that a further Teleconference be held when the results of that testing were known to him. The Chairman advised Mr Rao to notify the Executive Officer of the JCA when the results were available, and if his client was in a position to indicate if he would defend or admit the breach.
On 9 December 2016-by email-Mr Rao advised the Executive Officer of the JCA that the testing of the ‘B’ sample had been completed; and that the re-test did not contradict the initial analysis results. Further, Mr Rao advised that his client had not confirmed his intentions relative to a plea in this matter. Mr Rao suggested a further Teleconference between the parties.
On 15 December 2016 a further Teleconference involving the same participants as that on 10 November took place.
The relevant points from this conference call were
(a) Mr Rao was asking for a further adjournment, as he had forwarded letters on behalf of his client to ‘experts’ in forensic investigations.
These letters were in relation to the results of both the original analysis and the re-test of the ‘B’ sample.
(b) Mr Cruikshank, for the RIU, stated that he did not object to a further adjournment.
(c) Mr Rao committed to advising the Executive Officer, JCA, when he was in a position to proceed.
This matter was further adjourned.
Hearing
Following the above adjournment various communications between the parties resulted in an agreement that this matter would be heard at 1pm, 3 March 2017, at Alexandra Park, Auckland.
Documents
The following have been submitted as relevant to this matter:
1. TDDA – Notification of Drug Confirmation Results
2. ESR - Analysis confirmation
3. RIU - Authority to lodge Information
4. Copy of Information A7140
5. Copy Service of Information
6. HRNZ - Tremain Thorby Licence Status, drives to date
7. Authority to Act- Appointment of Mr Rao by T J Thorby
8. Letter dated 19 October 2016- Mr Rao advises request for adjournment
9. Minutes of Teleconference 10 November 2016
10. Letter dated 9 December 2016 – Mr Rao advising re-test of ‘B’ sample not contradictory to original test
11. Minutes of Teleconference 15 December 2016
Parties to this hearing have acknowledged that the above documents are in existence and have no objection to them being included as documentary evidence.
Summary of Facts-RIU
On Thursday 22nd September 2016, officials from the Racing Integrity Unit conducted routine drug testing of horsemen at the Harness Racing Waikato race meeting at the Cambridge Raceway in Cambridge.
The drug testing was conducted in the specialist workplace drug testing van by the Drug Detection Agency (TDDA).
Tremain Jonathan Thorby was one of ten Horsemen randomly selected for testing and was served the appropriate notice at 5.13pm by an Investigator.
Mr Thorby presented himself at 6.43pm and provided the required urine sample at 6.47pm. The sample was given the unique number U248463 and forwarded to the ESR the following day by a Drug Detection Agency authorised agent of the Racing Integrity Unit.
On Tuesday 27th September 2016, the Racing Integrity Unit was advised, in writing, that the sample provided by Mr Thorby had, on analysis, been found to contain the controlled substances Methamphetamine and Amphetamine.
A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 514(2) (a) and (b) were served on Mr Thorby on Wednesday 28th day of September 2016.
When spoken to Mr Thorby stated that he had never used Methamphetamine but was in the presence of a couple of friends who were using Methamphetamine about 3 days prior to the test being undertaken.
Tremain Jonathan Thorby is a licensed Advanced Amateur Horseman based in Papakura. He is employed on a full-time basis by Licensed Trainer Mr Tony Herlihy.
He is married with two children and has no previous history of offending.
Submissions, including Penalty Submissions - Mr Rao for Mr Thorby
Overview
1. Mr Thorby is a Licensed Advanced Amateur Horseman who has been charged with a breach of Rule 512(1) following a drug test conducted on 22 September 2016 at Cambridge Raceway.
2. Counsel confirms that the charge will be formally admitted at the hearing scheduled on 3 March 2017.
3. The Summary of Facts is accepted with the sole exception of the admission to being in the presence of friends who were using Methamphetamine. That point can be addressed further at the hearing if required.
# At the hearing the above matter was addressed by the Committee. In answer to a question from the Committee Mr Thorby stated that he had not made the statement referred to when spoken to by the RIU Investigators. The Committee made the point that this hearing was proceeding on the basis that is was an ‘admitted breach’, however for clarity is was necessary to confirm whatever assertions Mr Thorby was making about the conversation that had taken place when he was initially spoken to.
Personal Circumstances
4. Mr Thorby is 48 years old and resides in Pahurehure with his wife and their two young children. The family is of modest financial means and their main source of income is Mr Thorbys full-time employment as stable foreman at Strike Won Racing Stables in Ardmore.
5. A reference from Mr Thorby’s employer Mr Tony Herlihy MNZM for whom he has worked for the past 11 years is annexed at ‘A’. It is anticipated that several other references will be available by the time of the hearing.
6. Mr Thorby has enjoyed a degree of success as an amateur driver and it is submitted that he is well regarded in the harness industry. Mr Thorby has had considerable success as an Amateur Driver; this breach for him will result in a significant fall from grace.
The breach
7. As evidenced by his plea, Mr Thorby admits that he supplied a sample of urine at race day on 22 September 2016 which was found on analysis to contain Methamphetamine and Amphetamine. He accepts that ESR’s analysis is sound following analysis of the reference sample by Canterbury Health Laboratories.
8. Mr Thorby is adamant that he has never knowingly consumed the substances in question. He has reviewed his medical notes and prescription history from his doctor and has been unable to find anything that might explain the positive result.
9. Accordingly, no explanation is able to be advanced for the positive result except for unintentional consumption through lacing or spiking of Mr Thorby’s food or drink.
Mitigating Factors
Guilty plea
10. Mr Thorby has admitted the breach and will confirm his plea at the hearing.
11. It is acknowledged that Mr Thorby’s guilty plea has not come at the earliest opportunity. However, as previously acknowledged by the Committee, the charge is serious and carries potentially significant penalties. In light of those consequences and his lack of knowledge as to why a positive was returned, it is understandable for Mr Thorby to have explored his options before formally admitting the charge.
Previous good record
12. Mr Thorby has no previous relevant breaches of the Rules. He was first licensed in 1993 and is accordingly entitled to call upon his lengthy previous good record.
13. It is further understood that Mr Thorby has previously been subjected to random drug tests while driving and has returned negative results on every previous occasion.
Co-operation with authorities
14. Mr Thorby willingly co-operated with the drug testing procedure and made no attempt to evade the process. He also voluntarily stood himself down from driving on 22 September 2016 prior to the stand-down notice being served on 27 September 2016.
Submission as to penalty
15. It is accepted that a breach involving drugs of this nature will call for a penalty that provides not only specific but also general deterrence.
16. In the present case, Counsel agrees with the submission of the Informant that a suspension of 10 months should be imposed. It is submitted that any suspension should be backdated to 27 September 2016 when Mr Thorby was stood down.
17. Counsel relies on the case of RIU v IJM Brownlee (29 June 2012) which involved a Public Trainer and Open Horseman who gave a sample which tested positive for THC, Methamphetamine and Amphetamine. Mr Brownlee was suspended for 12 months and ordered to make a modest contribution to the costs of the Informant and the Authority.
18. In Brownlee the Committee saw no need to deprive the respondent of his industry related livelihood completely which related in suspension rather than disqualification being ordered. A similar factor exists in this case, as Mr Thorby works full-time as a stable foreman in racing stables owned by a licensed Public Trainer.
19. It is understood that the Informant seeks reimbursement of the costs of analysis of $187-50 to which Mr Thorby has no objection.
Included in the submissions above is a character reference from Mr Tony Herlihy, detailing his employment and personal connection with Mr Thorby. At the commencement of the hearing Mr Rao submitted two further testimonials, from Mr R Carr, and Mr T Vince.
Penalty Submissions- RIU
The Respondent Tremain Jonathan Thorby is a Licensed Advanced Amateur Horseman. He has been involved in the racing industry for all his adult life.
He has held various Horseman and Training Licenses since 1993. He is aged 48 years, date of birth 11 October 1968.
He has admitted a breach of the Rules in relation to the positive drug test undertaken on 22nd September 2016 at the Cambridge Raceway in Cambridge.
New Zealand Harness Racing has been drug testing industry participants for a number of years and during that time there has been a growing awareness that there is an absolute obligation on those driving horses to present themselves free of the influences of any drugs.
All Horsemen are aware of the policy and 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.
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.
On this occasion Mr Thorby presented himself and drove at the Harness Racing Waikato meeting while the drugs Methamphetamine and Amphetamine were within his body.
Methamphetamine is a Class A controlled drug and Amphetamine is a Class B controlled drug as defined in the Misuse of Drugs Act 1975.
The mitigating factors are that Mr Thorby has
(a) Admitted the breach
(b) Voluntarily stood himself down from driving from the date of the initial indicative test- 22 September 2016.
There are no aggravating factors.
It is submitted that a period of 10 months suspension of his Horseman’s Licence and the cost of the analysis of $187-50 (to the RIU) be imposed.
In support of this I refer to the following cases-
RIU v IJ BROWNLEE (24/12/15) Public Trainer and Open Horseman tested positive to THC (Cannabis) 73ng/ml. Suspended for 9 months plus costs.
RIU v GJ THOMAS (17/07/14) Open Horseman tested positive to THC Acid. 220ng/ml. Good character, no previous drug rule breaches, just over 5 months suspension. No fine.
RIU v NN BISHOP (1.08.12) Junior Horsewoman tested positive to THC Acid. In excess of 300 ng/ml. 6 months suspension, no fine.
RIU v IJ BROWNLEE (29.06.12) Public Trainer and Open Horseman tested positive to Methamphetamine, Amphetamine, and THC Acid. Suspended 12 months plus costs.
Reasons for Penalty
1. The Committee has carefully considered the facts and submissions lodged by the Informant and the Respondent.
2. The mitigating factors are that
(a) Mr Thorby has admitted the breach. We do not attach any importance to the fact that the Respondent has requested a further testing of the subject sample and has delayed his formal admission until today. Clearly it is his prerogative to do so. It is to his credit that he cooperated fully with the RIU Investigators when approached to supply a sample of his urine.
(b) Mr Thorby has held various licences during a quite extensive career in harness racing in New Zealand, and has no prior history of offending in respect of drug matters.
(c) We have due regard to the fact that he is a mature man engaged in full time employment within the harness industry, and that he is married with children. We are advised that Mr Thorby derives his sole income from that employment.
3. The aggravating factors are
(d) This breach results from a test conducted on a raceday when Mr Thorby was engaged in driving horse/s in races when other people and horses may have been placed at risk.
(e) Harness Racing New Zealand have made it clear that the use of drugs seriously impugns the integrity of racing, and more particularly the safety of horsemen engaged in driving at race meetings and trials. The purpose of the Rules in relation to testing was therefore quite plain. We point out that Methamphetamine is a Class A drug and the consequences of it being used when other industry participants and horses cannot be understated.
We are called upon to impose a penalty upon Mr Thorby following his admission of a charge of providing a sample of urine which, on analysis, has tested positive for Methamphetamine and Amphetamine.
There is no evidence before us as to the reason he has produced a positive to those drugs.
It has been submitted by the Respondent that there is no explanation which is able to be advanced for these positive results except for the unintentional consumption through his food or drink undergoing lacing or spiking.
We decline to speculate as to the veracity of that statement since there has been no evidence or testimony before us which would substantiate that claim.
The fact is that Mr Thorby has admitted the breach. It is clearly a breach of the Rule for an industry participant to have Methamphetamine and Amphetamine in their system, and they are to be penalised accordingly if such drugs are found on analysis to be in their system.
There is a clear need for Judicial Committees to impose penalties which maintain integrity and give the public confidence in thoroughbred and harness racing and which act as a deterrent to others in the general racing industry.
Rule 1003 provides for a variety of penalties which may be imposed following such a breach.
Disqualification for a period not exceeding 12 months.
Disqualification has the effect of removing the respondent from the activity he or she has been engaged in, to the extent that the person cannot enter upon a racecourse, stable or other training establishment; and clearly from engaging in whatever activity they had been engaged in.
In considering this penalty in Mr Thorby’s case we have looked at a number of cases in the Thoroughbred racing code.
Some of these are-
Jockey (C) – disqualified for 5 months in 2006, tested positive for Methamphetamine
Jockey (C) - disqualified for 8 months in 2009- tested positive for Methamphetamine
Jockey (W) – disqualified for 14 months in 2010- tested positive for Methamphetamine
Jockey (I) - disqualified for 18 months in 2010- tested positive for Methamphetamine
Jockey (I) - disqualified for 12 months in 2013 – tested positive for Methamphetamine
Jockey (C) - disqualified for 12 months in 2015- tested positive for Methamphetamine
These cases are referred to as an indication of the seriousness breaches of the drug Rules in racing generally are treated, especially those involving Methamphetamine. We do not refer to these cases in any way as setting precedents for harness matters as the Rules, penalties and circumstances could and often are dissimilar to harness matters. Disqualifications of those people referred to meant that their ability to earn any income from racing was terminated. In some cases this involved substantial earning capacity given their prior success. It is a fact that all of the people in Thoroughbred racing-jockeys and trackwork riders-who have appeared on charges involving Methamphetamine have been disqualified for varying periods.
There have not been any Harness racing licensees who have been disqualified. In fact, the case RIU v Brownlee (2012) referred to by both the Informant and Respondent is the only matter to date in the Harness industry involving Methamphetamine and Amphetamine. As stated in Mr Brownlees case, he was a licensed public trainer and driver. As such he was able to drive in races for reward and also to train horses for any person, again for reward. His suspension for 12 months would have resulted in quite a severe financial impact irrespective of how successful he may have been previously.
We do not consider this breach warrants Mr Thorbys disqualification. This would result in him being unable to be employed in his present position with Mr Herlihy-or any other trainer-or be employed in any manner in the industry. We do not believe this breach warrants a penalty that would impact upon Mr Thorby or his family to that extent.
A fine not exceeding $10,000 and or suspension from holding or obtaining a licence for a period not exceeding 12 months
Fine – There are no precedents in either code where a breach of the Rules involving Methamphetamine and Amphetamine has resulted purely in a fine. It is clear that such a breach must result in the respondent being removed from their industry activity for a period of time, and we therefore do not intend to deal with this matter by way of a fine only.
Suspension – Mr Thorby is currently licensed as an Advanced Amateur Driver. As such he is entitled to drive in races, however as an amateur he does not get paid to do so. Neither does he partake in any percentages of stakemoney which horses he drives attract by their finishing place.
A suspension of Mr Thorbys licence therefore would prevent him to drive in races and it would allow him to carry on his employment with Mr Herlihy or another trainer. The impact on Mr Thorby financially would be nil as he does not get paid for what his licence allows him to do. We note that given the number of drives Mr Thorby has had over the past 3 seasons, suspension would result in him missing between 1 and 2 drives per month.
Penalties imposed by Judicial Committees must be meaningful. We do not consider that a suspension alone in Mr Thorbys case would amount to a meaningful penalty.
For that matter we intend to impose a suspension of his licence along with a fine to act as a deterrent to others. Such fine must be sufficient to have an impact on Mr Thorby. We have made reference to a number of other racing participants who have suffered financial impacts due to their transgression of drug Rules, and believe for consistency Mr Thorby should be similarly impacted.
Penalty
It is appropriate that Mr Thorby should bear the cost of the original analysis of the sample being $187.50 and we order that he pay that amount to the RIU.
The starting point for a suspension-as per the Rule-is 12 months. We take into account Mr Thorbys admission of the breach and his clear record to date.
Mr Thorbys licence to drive in races is therefore suspended from the date of his stand down- 28 September 2016, until after racing on 28 July 2017-10 months.
In addition, we impose a fine of $2000 on Mr Thorby. The Committee is of the opinion that a fine needs to be imposed to act as a deterrent and send a clear message to other industry participants that there is no place for illegal substances within the industry, particularly classified drugs such as Methamphetamine and Amphetamine.
We understand that it is the role of the RIU to require Mr Thorby to undergo a further test and provide a clear sample prior to the completion of his term of suspension if he intends to resume raceday driving.
Costs
Apart from the matter of the analysis costs already dealt with the RIU have made no submission of costs.
This matter is being heard on a raceday. It JCA Policy to wherever possible deal with admitted breaches on racedays, and therefore there will be no order for costs.
AJ Godsalve AJ Dooley
Chair Committee Member
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