Non Raceday Inquiry RIU v T Johnson – Penalty Decision dated 12 May 2016 – Chair, Mr P Williams

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hearing_title: Non Raceday Inquiry RIU v T Johnson - Penalty Decision dated 12 May 2016 - Chair, Mr P Williams

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Decision:

BEFORE A NON-RACEDAY JUDICIAL COMMITTEE

OF THE JUDICIAL CONTROL AUTHORITY FOR RACING

UNDER THE NEW ZEALAND RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

RACING INTEGRITY UNIT (RIU)

Informant

And

TAANE TINORAU WALTER JOHNSON

Defendant

Judicial Committee: Mr Paul Williams (Chairman) and Mr Tom Castles (Committee Member)

Present: Mr Simon Irving, Racecourse Investigator, RIU - Mr Taane Tinorau Walter Johnson, Defendant

VENUE: Palmerston North Raceway

DATE OF HEARING: 12 May 2016

Date of Decision: 12 May 2016

PENALTY DECISION OF NON RACEDAY TRIBUNAL

1. INTRODUCTION

The Informant, Mr Simon Irving, has alleged that Mr Johnson breached Rule 656(3) of the NZTR Rules of Racing with the specific charge being as follows:-

THAT on the 22nd April 2016 at Awapuni, having been required by a Stipendiary Steward to supply a sample of your urine in accordance with Rule 656(3) of the NZTR Rules of Racing, you provided urine which upon analysis was found to contain the controlled drug Cannabis as defined in the Misuse of Drugs Act 1975 AND THAT you are thereby liable to the penalty which may be imposed on you pursuant to Rule 803 of the said rules.

Mr Irving produced a letter dated 2 May 2016 from Mr M Godber, Operations Manager for the Racing Integrity Unit, authorising the filing of the Information pursuant to Rule 903 (2) (d).

Rule 656(3) states: A Rider, or any other Licence holder 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.

Rule 803(3) states: Subject to Rule 803(2)(b), where any Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises commits or is deemed to have committed a breach of these Rules related to drugs or alcohol and a penalty is not provided elsewhere in these Rules for that breach, that Licenceholder committing the breach may:

(a) be disqualified for a period not exceeding 5 years; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and/or

(c) be fined a sum not exceeding $50,000.

Mr Johnson, who holds a Class B Miscellaneous License, acknowledged that he understood the nature of the charge and the Rule and confirmed (as showing on Information A4180) he admitted the breach. He also acknowledged that all the relevant documents from the RIU had been disclosed to him and accepted the contents of the documents and consented to them being admitted as evidence.

The proposed procedure for the hearing was explained to Mr Johnson and he had no concerns or objections.

2. SUMMARY OF FACTS BY THE INFORMANT

Mr Irving provided a Summary of Facts which is reproduced in full below.

“The respondent Taane Tinorau Walter Johnson is a Class B Miscellaneous (Track work Rider) Licence holder under the Rules of New Zealand Thoroughbred Racing. He is 34 years old and is employed as a track work rider at Awapuni by Lynds Racing Stables.

Having ridden track work on the morning of Friday 22nd April 2016, Mr Johnson was served a notice to provide a sample under NZTR Rule 656(2) by Stipendiary Steward Brian Bateup.

Mr Johnson provided a urine sample later that day at The Drug Detection Agency (TDDA) office in Palmerston North. The sample provided was outside testing parameters with both creatinine and specific gravity abnormally low (dilute) so no indicative reading was obtained.

The sample was sent to the ESR for full screening and adulterant testing.

On the 28th April the ESR issued a certificate (Ref A16ESR08974-001) detailing Mr Johnson’s sample positive to Cannabis at a THC Acid Level of 37 ng/mL. This reading is considered ‘low level’ with the ESR minimum ‘positive’ level set at 15 ng/mL.

When interviewed on the 02nd May Mr Johnson explained that he smoked cannabis most Saturday nights as a way of relaxing and socialising with friends. He was served a ‘Stand down’ notice from this date.

Mr Johnson has been a licensed track rider for approximately 14 years, having started riding in Victoria, Australia in 2002 and has no previous Cannabis positives in either country.”

3. SUBMISSIONS BY THE RESPONDENT

Mr Johnson said he was very upset by what had happened. He said he loved horses, always tried his best and thought he was doing a good job for Mr Lynds since he started working at his stables 9 months ago. He said he had previously spent time working for trainers Graham Richardson and Graeme Rogerson before moving to Palmerston North. He reminded the Committee that he was a “first time offender” but reiterated when questioned that he did not disagree with Mr Irving’s summary of facts.

4. DECISION

As Mr Johnson has admitted the breach the charge is found proved.

5. SUBMISSIONS ON PENALTY BY INFORMANT

Mr Irving made the following submissions on penalty which are reproduced in full below.

“The respondent Taane Tinorau Walter Johnson is a Class B Miscellaneous (Track work Rider) Licence holder. He is employed by licensed trainer Mr Jeff Lynds. He is 34 years old and has been riding track work since 2002 when he started in Victoria, Australia.

He has admitted a breach of the rules in relation to the positive drug test provided on the 22nd April 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 ensure 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 other mitigating and aggravating factors. On this occasion Mr Johnson was track work riding at the Awapuni racecourse while the drug THC (Cannabis) was within his body. THC (Cannabis) is a Class C controlled drug.

It is submitted that a two and a half month suspension (backdated to the 02nd May when Mr Johnson was stood down from riding) and the cost of the ESR analysis of $187.50 should be imposed.

In support of this submission I refer to the following decisions:

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

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

Mitigating Factors

It is acknowledged that Mr Johnson has admitted the breach at the first opportunity. Mr Johnson’s THC reading of 37 ng/mL is considered ‘low range’ with the base testing ‘positive’ limit set at 15 ng/mL. A ‘high range’ level is considered to be >300 ng/mL. Mr Johnson has no previous drug charges.

Aggravating Factors

RIU staff conducted human drug testing at Awapuni Racecourse on the morning of the 15th March 2016. Mr Johnson, who was riding for Mr Lynds that morning, when alerted to the RIU’s presence did not return to the track proper and left Mr Lynds stables to avoid the testing, having not completed all his track-riding duties.

Mr Johnson was spoken to on the 23rd March regarding his behaviour on the 15th March and the fact that his Track-riders licence had not been renewed. At this time he was informed that he would be drug tested in due course.

The sample Mr Johnson provided to TDDA a month later on the 22nd April did not give an indicative reading as it was “dilute”. This normally occurs from the consumption of a quantity of water in an attempt to mask or dilute any trace of drug in the person’s system.

Conclusion

Given the mitigating and aggravating factors as listed and the overall circumstances considered in this case, I believe that a penalty of two and a half month’s suspension (commencing from the 02nd May) and $187.50 of costs to the RIU should be imposed”

Mr Irving was asked to clarify the issue of Mr Johnson’s track work riders license. He said that Mr Lynds had paid for the licence to be issued and the necessary paperwork had been sent to NZTR around 23 or 24 March 2016.

Mr Irving also said he had recognised through his dealings with Mr Johnson that he had a number of personal issues that needed to be worked through. He said he had been in contact with the Salvation Army in Palmerston North who employed a person who specialised in helping people in the racing industry with any personal issues they might have and was going to speak with Johnson after the hearing today about the arrangements he was going to make for Mr Johnson to meet with that person.

6. SUBMISSIONS ON PENALTY BY RESPONDENT

Mr Johnson had no submissions to make on any penalty. He again spoke about his love of horses, his enjoyment in working in the racing industry and he hoped that he would be able to continue working in it. He also said his employment with Mr Lynds had been terminated on 2 May 2016 and he was currently unemployed.

7. REASONS FOR PENALTY

The Committee carefully considered the evidence and submissions presented. The mitigating factors are Mr Johnson’s admission of the breach, his clear record under this Rule and his co-operation in April and early May 2016 with the Racing Integrity Unit during their investigations.

The aggravating factors are that Mr Johnson was riding track work on 22 April 2016 whilst under the influence of cannabis, posing a safety risk to horses, riders and other industry participants. In addition, on 15 March 2016 when alerted to the RIU’s presence at the Awapuni Racecourse, he left the course having not completed his track work riding to avoid being drug tested on that day.

NZTR’s policy on drugs is well established and has been made known to all stakeholders and licensed persons, particularly riders. The primary purpose for NZTR’s drug policy is to ensure the safety of the rider, the safety of other riders, the safety of the rider’s mount and all other horses in the direct company of any rider under the influence of drugs.

We are also mindful that in all cases where an individual has been taking/using a prohibited substance the integrity of the racing industry may be compromised. It is important that not only is this integrity upheld by the decisions of Judicial Committees but also any penalty must be a deterrent for others in the industry.

It was clear to the Committee that Mr Johnson has a number of significant personal issues that he must deal with, even more so since he is no longer employed by Mr Lynds. It is not intended to detail what those issues are but they have also been recognised by Mr Irving who, to his credit, has commenced looking into how Mr Johnson can access support using the services of the Salvation Army in Palmerston North.

Rule 812(a) states:-

“The Judicial Committee may in addition to or in substitution of any penalty imposed under Rules 801, 803 and/or 804 require the person committing the breach to complete a counselling or rehabilitation course of the type specified by the Judicial Committee…..”

In addition to the penalty imposed today, this Committee requires Mr Johnson to attend a meeting (which will be organised by Mr Irving) with the Salvation Army in Palmerston North who are much better placed to determine what might be appropriate in terms of counselling or rehabilitation for Mr Johnson in order to facilitate a possible return to the industry at the completion of his period of suspension. The Committee strongly advises Mr Johnson to attend that meeting when it is arranged for him.

8. PENALTY

The JCA’s Penalty Guidelines do not state a starting point for a breach of Rule 656(3). The penalty is therefore dependant on the evidence and submissions presented and after taking into account all of the submissions above we believe on this occasion a period of suspension is an appropriate penalty.

The Committee notes that Mr Johnson was stood down from riding track work on 2 May 2016. The Committee reinstates Mr Johnson’s track work rider license from that date and suspends his track work rider license from 2 May 2016 up to and including 16 July 2016.

9. COSTS

Mr Johnson is ordered to pay costs of $187.50 to the RIU for sample analysis costs. This hearing was conducted on a raceday and accordingly there are no further orders as to costs.

Paul Williams
Chairman {Signed pursuant to Rule 920(4)}

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