NRI NZTR v J J Miller 8 May 09

hearingid: bd63aaf3c7fc79399abbea7d3f21a2d9

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: NRI NZTR v J J Miller 8 May 09

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NEW ZEALAND THOROUGHBRED RACING v Jason John MILLER Licensed Jockey 
           

HEARING before Non-Raceday Judicial Committiee
at Te Rapa Racechourse, 8 May 2009

JUDICIAL COMMITTEE     Mr J M Phelan, Chair and Mr R M Seabrook

PRESENT:                           Mr J. W. McKenzie (Chief Racecourse Inspector) for NZTR    
                                               Mr B. F. McKenzie (Racecourse Inspector) 
                                               Mr J. J. Miller (Defendant)

ALSO PRESENT:               Mr J. P. Oatham (Stipendiary Steward)
                                               Ms S. A. Moore (Stipendiary Steward)

DECISION OF JUDICIAL COMMITTEE

Information No. 7166 has been filed by Racecourse Inspector Mr B. F. McKenzie, and alleges a breach of Rule 528(1) of the Rules of Racing by the defendant, Licensed Jockey Mr J. J. Miller.  The charge reads as follows.

“I, the abovenamed informant allege that the abovenamed Defendant committed a breach of Rule 528(1) IN THAT on the 22nd day of April 2009, at the Matamata Racecourse at the race  meeting conducted by Racing Matamata, being a rider who, having been requested by a Racecourse Inspector to supply a sample of his urine which was found upon analysis, to contain the controlled drugs amphetamine and methamphetamine  as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 528(1) of the New Zealand Rules of Racing AND THAT you are thereby  liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1003(1) of the said Rules.”

NEW ZEALAND THOROUGHBRED RACING v Jason John MILLER Licensed Jockey 

HEARING before Non-Raceday Judicial Committiee
at Te Rapa Racechourse, 8 May 2009

JUDICIAL COMMITTEE     Mr J M Phelan, Chair and Mr R M Seabrook

PRESENT:                           Mr J. W. McKenzie (Chief Racecourse Inspector) for NZTR                 

                                               Mr B. F. McKenzie (Racecourse Inspector) 
                                               Mr J. J. Miller (Defendant)

ALSO PRESENT:                Mr J. P. Oatham (Stipendiary Steward)
                                               Ms S. A. Moore (Stipendiary Steward)

DECISION OF JUDICIAL COMMITTEE

Information No. 7166 has been filed by Racecourse Inspector Mr B. F. McKenzie, and alleges a breach of Rule 528(1) of the Rules of Racing by the defendant, Licensed Jockey Mr J. J. Miller.  The charge reads as follows.

“I, the abovenamed informant allege that the abovenamed Defendant committed a breach of Rule 528(1) IN THAT on the 22nd day of April 2009, at the Matamata Racecourse at the race  meeting conducted by Racing Matamata, being a rider who, having been requested by a Racecourse Inspector to supply a sample of his urine which was found upon analysis, to contain the controlled drugs amphetamine and methamphetamine  as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 528(1) of the New Zealand Rules of Racing AND THAT you are thereby  liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1003(1) of the said Rules.”

Rule 528(1) provides as follows.

“(1) Every rider or stablehand who, having been required by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers, commits a breach of this Rule.”

Mr Miller attended the hearing and he admitted this breach of the Rules.  He
also agreed that he understood the charge and the Rule.  Accordingly we found the charge to be proved.

 Mr J. W. McKenzie provided an authority to prosecute from the Chief Executive of New Zealand Thoroughbred Racing.  Mr McKenzie also presented and read a “Summary of Facts” relating to this charge.  

Summary of Facts:

 On 22 April 2009 random drug testing was carried out on a number of riders at the Matamata Racecourse where a race meeting was being conducted by Racing Matamata that day.  Mr Miller was one of those riders, and his urine sample was forwarded to the ESR.  On 27 April 2009 a Certificate was issued by the ESR reporting that this sample had tested positive to amphetamine and methamphetamine which is a Class A controlled drug.

 On the 27 April 2009 Mr Miller was spoken to by Racecourse Inspector Mr B. F. McKenzie at the offices of the Matamata Racing Club.  Mr Miller was handed a copy of the ESR Certificate, and he was also served with a “stand down” notice issued under the provisions of Rule 528A(1).  At the same time Mr Miller was interviewed and made a written statement in which he frankly admitted smoking the Class A controlled drug, commonly known as “P”, on the afternoon of 21 April 2009.  Mr Miller acknowledged that he had a problem with drugs, and said he had undergone treatment and counselling in an attempt to get off them.

 Mr Miller is a single man aged 21 years, and his only income was from working in stables in the Matamata area.  He has now been prevented by the Rules from being employed in any way in the Racing Industry.  Mr Miller has been given advice by the Racecourse Inspectors as to the type of employment he can seek on the periphery of the industry.

 After these submissions had been read Mr Miller was asked if he disputed any of the matters raised, and he said that he did not.

Submissions on Penalty: 

 Mr J. W. McKenzie presented and read penalty submissions.  He introduced these submissions by setting out the reasons why Thoroughbred Racing worked so hard to detect jockeys and track workers who used illicit drugs.  It was emphasised that NZTR has an illicit drug free policy in terms of all riders whether they ride in races, trials or in track work. 

 Mr McKenzie advised that Mr Miller had a previous conviction in January 2007 when he tested positive to cannabis, and at that time he was riding track work as a stable hand at the Tauranga Racecourse.  Mr Miller pleaded guilty to this charge and was fined $450-00, as it was NZTR policy at that time to seek a fine only for riders who were not licensed jockeys.

 Mr McKenzie said that a penalty of 12 months disqualification was sought. Although this was the maximum penalty available for this breach, Mr McKenzie said that a clear message needed to be sent to all riders that severe penalties can be expected if they use Class A drugs. No additional fine was sought by NZTR.

 Mr McKenzie also mentioned the principles of sentencing as set out by Mr J. W. Gendall QC (as he then was).  These principles will be mentioned later in this decision.

 After hearing the submissions from Mr McKenzie a short adjournment was taken to enable Mr Miller to gather his thoughts on matters he wanted to raise as to penalty.

 On the resumption of the hearing Mr Miller made submissions that his guilty plea should be taken into account.  He also said that he had a drug problem that he had tried to overcome with counselling and treatment in the past.  He said that he was seeking further treatment and counselling at present, and that he was determined to overcome the problem he had with drugs.  He said that he had been able to find suitable employment with horses, and that this employment did not infringe on any period of disqualification that he might receive.

 After hearing submissions on penalty we adjourned to consider our decision.

Decision on Penalty:

 Rule 1003(1) of the Rules of Racing, so far as it is relevant, provides as follows.

 “(1) Every person who or body or other entity (not being a Club) which commits or is deemed to have committed a breach of these Rules or any of them, or any sub-Rule of any of them for which no penalty is provided elsewhere in these Rules shall be liable to:
(a) be disqualified for a period not exceeding twelve months; or
(b) suspended from holding or obtaining a licence, permit, certificate or registration for a period not exceeding 12 months.  If a licence, permit, certificate or registration is renewed during a term of suspension, then the suspension shall continue to apply to the renewed licence, permit, certificate or registration; and/or
(c) a fine not exceeding $10,000.”

 The four principles of sentencing referred to earlier in this decision by Mr McKenzie are well known, and can be summarised as follows.

 - Firstly the penalty imposed must punish the offender for his wrongdoing.   There is a need to maintain integrity and public confidence in racing and to this end  the sentence must be a realistic punishment but not excessively retributive.

- Secondly the sentence must deter other persons in the racing industry from committing like offences.  Put in another way persons involved in the racing industry should be given a clear signal that offending in this way will not be tolerated.  The penalty must deter the person charged from re-offending and it must also deter others.

- Thirdly there is a preventative element in the sentence in those cases where the defendant is effectively prevented from offending by the imposition of a disqualification.

- Finally there is the rehabilitation of the defendant.  The aim of imposing an appropriate sentence is to induce the defendant to abide by the rules in the future.  The relevance of attempting to rehabilitate the defendant depends largely on his or her history of offending.  That is to say a repeat offender would not receive the same consideration as a first offender.

 In the present case the factors which favour Mr Miller are that he admitted this breach at the first opportunity, and the matter was heard with no delay.  We also found Mr Miller to be quite frank in relation to his drug problems, and he has expressed a determination to overcome them. 

 The aggravating factors are that Mr Miller has a previous conviction under this Rule in January 2007 when testing positive to cannabis use.

 We are satisfied that the sentence must be a deterrent to Mr Miller and other like minded persons.  The penalty should not be excessively retributive, and should encourage Mr Miller to work towards rehabilitating himself.

 The penalty sought by NZTR of 12 months disqualification is the maximum available.  It would be unusual to impose a maximum sentence, as we believe that there could well be more serious breaches of this nature in the future.

 We have decided therefore that Mr Miller will be disqualified for a period of nine (9) months from May 8 2009 to 7 February 2010, both dates inclusive.

Costs:  

 Mr McKenzie advised that no costs were being sought by NZTR.

 The Tribunal has however determined that this is an appropriate case to order costs to the Judicial Control Authority. In fixing the amount of costs we consider that Mr Miller should make a reasonable contribution towards the costs which have been incurred.  Indemnity costs are not considered appropriate but the figure set should nevertheless reflect the real cost of this hearing. We therefore order that Mr Miller is to pay costs of $600-00 to the Judicial Control Authority.

Footnote:

 During the hearing Mr McKenzie asked the Judicial Committee to endorse “….the proposal that Jockey Miller attend a drug rehabilitation course for the prevention of the use of illicit drugs, before any provision of registration or licence is re-issued.” 

 There is no provision in the Rules of Racing to enable us to make such an order against Mr Miller, and Mr McKenzie agreed this was so.  We do however endorse the proposal as being in the best interests of Mr Miller’s rehabilitation, and we hope that he will comply with the proposal.

_______________                    
J. M. Phelan    
Chair
7166      

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hearing_type: Old Hearing

Rules: 528.1, 1003.1, 528A.1

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