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Non Raceday Inquiry RIU v B A Swinburne - Reserved Decision as to Penalty - Chair, Mr S Ching

Created on 22 May 2017

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing 

IN THE MATTER of Information

No. A7126

& No. A7128

BETWEEN

ANDREW CRUICKSHANK, Racing Investigator for the Racing Integrity Unit

Applicant

AND

BRAD ALLAN SWINBURNE

Un-licensed Trackwork Rider

Respondent

Judicial Committee: Mr S C Ching, Chairman - Mr R G McKenzie, Committee Member

Present: Mr P Lamb, Racing Investigator (for the Racing Integrity Unit)

Mr B Swinburne, the Respondent

Mr R Bishop, representing Licensed Trainer, Mr K Rae

Ms S Rogers, in support

Mr S Renault, Stipendiary Steward, as Registrar

Date of Hearing: 12 May 2017

Venue: Addington Raceway, Christchurch

Date of Decision: 19 May 2016

RESERVED DECISION OF JUDICIAL COMMITTEE AS TO PENALTY

The Charges

[1] Information No. A7126 alleges on the 30th day of November 2015, at the Cambridge Jockey Club, Cambridge, having been required by an Investigator to supply a sample of urine in accordance with Rule 656(3) of the New Zealand Rules of Racing, had urine which was found, upon analysis, to contain the controlled drugs Methamphetamine and Amphetamine as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656(3) AND IS therefore liable to the penalty or penalties which may be imposed pursuant to Rule 803 of the said Rules.

[2] Information No. A7128 alleges on the 30th day of November 2015, at the Cambridge Jockey Club, Cambridge, having been required by an Investigator to supply a sample of urine in accordance with Rule 656(3) of the New Zealand Rules of Racing, had urine which was found, upon analysis, to contain the controlled drug THC (Cannabis) as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656(3) AND IS therefore liable to the penalty or penalties which may be imposed pursuant to Rule 803 of the said Rules.

The Plea

[3] The informations were initially served by Mr A Cruickshank, Racing Investigator, on Mr Swinburne on 30 November 2015. Mr Swinburne had signed the Statement by the Respondent on the information form indicating that he admitted both breaches of the Rule on 9 December 2015. Mr Swinburne was subsequently unable to be located and was served again at 10am on Friday 5 May 2017, in Christchurch, by Racing Investigator, Mr P Lamb.

[4] Mr Swinburne was present at the hearing of the information and he confirmed that he admitted the breach and he understood the Rule he was being charged with.

[5] The charges were found proved accordingly.

The Rule

[6] Rule 656 (3) provides as follows:

(3) 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 Page 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, artefacts or isomers.

Facts

[7] Mr Lamb produced documentation dated 9 December 2015, from the General Manager of the RIU, Mr M Godber, authorising Mr Cruickshank under Rule 903(2)(d), to lodge the information against Mr Swinburne.

[8] Mr Lamb also provided documentation from TDDA dated 7 December 2015 indicating the positive result for both Amphetamine and Methamphetamine as well as a positive result to cannabinoids-TCH Acid Level 77 ng/ml=µg/L.

[9] Mr Lamb on behalf of Mr Cruickshank, presented the following:

Agreed Summary of Facts:

On Monday 30th November 2015, officials from the Racing Integrity Unit conducted routine drug testing at the Cambridge Jockey Club on Racecourse Road, Cambridge. Brad SWINBURNE was one of the people randomly selected for testing and was served the appropriate notice at 6.41am by a Stipendiary Steward.

Mr SWINBURNE provided the required urine sample at 9.09am. The sample gave an indicative positive test to THC (Cannabis) but the test was creatinine deficient in that it was diluted and unable to be processed further.

As a result, Mr SWINBURNE was directed to attend at The Drug Detection Agency offices in Hamilton prior to 4pm on 1 December to provide a further sample.

Mr SWINBURNE did attend and provide the sample as required which was indicative positive to Methamphetamine, Amphetamine and THC (Cannabis).

The Drug Detection Agency forwarded that sample to the ESR for confirmation analysis.

On 7th December 2015, the Racing Integrity Unit was advised, in writing, that the sample provided by Mr SWINBURNE had, on analysis, been found to contain the controlled drugs Methamphetamine, Amphetamine and THC (Cannabis).

A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 657(1)(a) were served on Mr SWINBURNE on the 9th day of December 2015 as provided in Rule 911(1)(b).

When spoken to Mr SWINBURNE stated that he had smoked Cannabis about 9 or 10 days prior to the test but denied that he had taken Methamphetamine.

Brad SWINBURNE was at that time an unlicensed track rider for licensed trainer Ross McCarroll. Of recent times Mr SWINBURNE has been working as a stable hand for licensed trainer Kenny Rae, based at Riccarton. He remains unlicensed.

Mr SWINBURNE has one previous rule breach for riding with THC (Cannabis) in his system from 2014.

He currently has outstanding debts owing to NZTR totalling $387.50. These are a result of his 2014 rule breach.

Informant’s Penalty Submissions

[10] Mr Lamb, on behalf of Mr Cruickshank, presented the following Submissions in Relation Penalty:

1. The respondent Brad Allan SWINBURNE (39) was an unlicensed Track Rider employed by licensed trainer Ross McCarroll in Cambridge, at the time of this offending. Currently he is employed as a stable hand by licensed trainers Kenny and Lisa Rae at Riccarton. He remains unlicensed. He has been involved in the racing industry for all of his adult life.

2. He has admitted 2 charges against Rule 656(3) NZTR, in relation to the positive drug test undertaken on 1st December 2015 at The Drug Detection Agency office in Hamilton.

3. New Zealand Thoroughbred Racing has been drug testing industry participants since 1995 and since that time there has been a growing awareness that there is an absolute obligation on those riding horses to present themselves free of the influences of any drugs.

4. All riders are aware of the policy and the 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.

5. 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.

6. On this occasion, Mr SWINBURNE has presented himself at the Cambridge Jockey Club to ride track work while the drugs Methamphetamine, Amphetamine and THC (Cannabis) were within his body.

7. Methamphetamine is a Class A controlled drug, Amphetamine is a Class B controlled drug and THC (Cannabis) is a Class C controlled drug.

8. It is the view of the RIU that the two drug offences could be treated as one offence for the purposes of the imposition of penalty.

9. The Methamphetamine and Amphetamine are considered the more serious and it is submitted that the peripheral Cannabis offence penalty could be served concurrently with the more serious offences.

10. Sentencing Principles

The four principles of sentencing can be summarised briefly:

- Penalties are designed to punish the offender for his/her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

- In a racing context, it is extremely important that a penalty has the effect of deterring others from committing like offences.

- A penalty should reflect the disapproval of the Judicial Control Authority for the type of behaviour in question.

- The need to rehabilitate the offender should be taken into account.

The first three principles are particularly important here.

11 Relevant Decisions in similar cases:

R.I.U v A.J. Couchman (24.07.15) In this case an unlicensed track work rider tested positive to Methamphetamine and Amphetamine. He was disqualified for 12 months and ordered to pay the cost of the testing analysis.

R.I.U v Isherwood (4.11.13) In this case the rider held a Class A Rider Licence and tested positive to Methamphetamine and Amphetamine whilst riding track work. She was disqualified for a period of 12 months and ordered to pay the cost of the testing analysis.

12 Conclusion

It is submitted that a period of 12 months’ disqualification and the cost of the analysis of $187.50 (to the RIU) should be imposed.

Submissions of the Respondent

[11] Mr Swinburne stated that he agreed with the statement of facts presented and said that prior to his positive test he was a reasonably regular user of cannabis but had only used Methamphetamine on the one occasion, being the night before the testing when a friend from Dunedin drove up to Cambridge to meet up with him. He said the first test indicated that he was just suspected of Cannabis in his system but the following day the test was positive.

Mr Lamb, in response, stated to the hearing, that the first test was a Non-negative result which facilitated the next test the following day being the positive as reported by the TDDA & ESR.

[12] Mr Swinburne stated that his original hearing was scheduled for 19 December 2015 at Te Rapa, 2 weeks after the positive result. He said he was booked to fly up to his father’s property in Keri Keri, the following day, 20 December, to sort his issues out and clean himself up. He stated that on Friday 18 December 2015, he received a phone call from Racing Investigator, Bryan Oliver, who told him that they were too busy to have the hearing on 19 December, with the hearing being put off until early next year. He said had the hearing been heard as scheduled on 19 December 2015 he would have already served his penalty. He said he knew he was looking at a possible 12-month penalty for the breach so did not set foot on a race track for quite some time. He stated that he was always in New Zealand and was not hiding from the authorities. He always knew he would have to face the charge at some time and said he shifted down to Christchurch and worked for McDonnell Dowell as a worker in construction associated with the rebuild. Mr Swinburne stated that when work started to run out with McDonnell Dowell in Christchurch, he had to look for employment in the racing industry, which he has worked in since he was 16 years old, as that is all he knows. He said he started back working in the industry in late December 2016, early January 2017. Mr Swinburne stated that he had applied for a stable hand licence and that was what had alerted NZTR that he was in Christchurch. He said he had working on the starting gates from time to time and that may have been when he was noticed by the RIU. He reiterated that he was not hiding from authorities and was expecting the charges to come up sooner rather than later.

Mr Swinburne stated that he was not currently using drugs and had been clean since his positive test in 2015.

Penalty submissions of the Respondent

[13] Mr Swinburne stated that working with horses and in the racing industry was his still his preferred future as it was where he was well qualified. He said he knew nothing else.

He said he has 3 children and stated that he had been out of racing for over 12 months which he submitted, felt like he had served his time already. He stated that this should be taken into account when penalty was being considered. He submitted that it would be very difficult for him to get work outside the racing industry if he was put out for 12 months.

[14] Mr Richard Bishop, owner of horses in the Rae stable, produced at the hearing a very positive character reference from Mr Swinburne’s employer, Licensed Trainer, Mr K Rae.

[15] Mr Bishop stated that he was an owner of horses with Kenny Rae’s stable and had known Mr Swinburne since he had started with Mr Rae in early January 2017. He said he found Mr Swinburne very obliging, very helpful and a very astute horseman. He said that Mr Swinburne has put the finishing touches to his successful horse, PROM QUEEN, of which he is a half-owner. He said he takes a keen interest in the stable and that Mr Swinburne does a very good job there. He also stated that if Mr Swinburne was disqualified, it would be a loss to the industry.

[16] Miss Rogers submitted that Mr Swinburne was her partner and that he was her “rock”. She stated that she was having some difficult personal family issues at the moment, and Mr Swinburne had helped keep her grounded and was of great assistance and support with this situation. Miss Rogers asked that his absence from the industry for nearly 18 months was like a disqualification in itself, and submitted that he had already served his time. She asked that maybe a suspension be considered as penalty instead of a disqualification, as then he could still work in the stables, just not ride track work.

[17] Discussion was held in regard to the matter of a suspension versus a disqualification. This discussion clarified that a suspension as well as obviously, a disqualification, as Rule 803 states, “be suspended from holding or obtaining a Licence”, would prevent Mr Swinburne from obtaining any licence, be it a stable hand or track work licence, in the industry for the length of any suspension imposed.

Reasons for Penalty

[18] The relevant penalty Rule is 803(3) which provides:

Rule 803

(1) A person who commits, or is deemed to have committed a breach of these Rules for which a penalty is not provided elsewhere in these Rules shall be liable to:

(a) be disqualified for a period not exceeding 12 months; and/or

(b) be suspended from holding or obtaining a License for a period not exceeding 12 months. If a License is renewed during a term of suspension, then the suspension shall continue to apply to the renewed License; and/or

(c) a fine not exceeding $20,000.

[19] In determining penalty the Committee took into consideration all aggravating and mitigating factors. Aggravating factors in this case are firstly, Mr Swinburne’s record which shows a breach of this rule in April 2014, 20 months prior to this offence, when found to have THC- Cannabis at 73 nanograms per millilitre of urine, being a low-level result. This resulted in a five-week suspension and a fine of $200 being imposed.

[20] A further aggravating factor is that Mr Swinburne would have been acutely aware of the rules and the policy adopted by NZTR, especially after his previous breach, in that regular drug testing is carried out by the authorities for the need to maintain a healthy and safe workplace and to maintain the integrity of the industry. Yet he obviously, as he freely admitted, was a reasonably regular user of cannabis and continued on using, knowing that testing could take place at any time. As for his submission that the ingestion of Methamphetamine and Amphetamine the night before the testing, was a “one off”, we are inclined to take his word for this as we do not have evidence to the contrary.

[21] Mr Swinburne has submitted to us, at this hearing, that since his positive result to Methamphetamine, Amphetamine and Cannabis, he has not used any drugs whatsoever and had removed himself from the industry to clean himself up. We find Mr Swinburne’s honest and open submissions to be credible and believe his actions in this matter are a mitigating factor. We also find his frank admission of the breach a further mitigating factor.

[22] The Committee have taken into account the following four sentencing principles when considering the appropriate penalty:

Sentencing Principles

The four principles of sentencing can be summarised briefly:

Penalties are designed to punish the offender for his/her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

In a racing context, it is extremely important that a penalty has the effect of deterring others from committing like offences. -

A penalty should reflect the disapproval of the Judicial Control Authority for the type of behaviour in question.

The need to rehabilitate the offender should be taken into account.

[23] Previous relevant decisions provided by Mr Cruickshank were of assistance in this case being;

R.I.U v A.J. Couchman (24.07.15) In this case an unlicensed track work rider tested positive to Methamphetamine and Amphetamine. He was disqualified for 12 months and ordered to pay the cost of the testing analysis.

R.I.U v Isherwood (4.11.13) In this case the rider held a Class A Rider Licence and tested positive to Methamphetamine and Amphetamine whilst riding track work. She was disqualified for a period of 12 months and ordered to pay the cost of the testing analysis.

RIU v Couchman, was of particular assistance, as the facts of the case were very similar to Mr Swinburne’s.

In decisions where there is a positive result to THC-Cannabis the following were of assistance to this Committee;

RIU v HL Borrows (14-12-2015) In this case a trackwork rider tested positive to THC Cannabis. Ms Borrows was suspended for 2 months with cost awarded against her of $187.50.

RIU v P Ormsby (1-12-2011) In this case a trackwork rider tested positive to THC Cannabis. Mr Ormsby was suspended for 3 months with costs of $172.21 awarded. This was his second breach of this rule.

[24] Information A 7126 - Methamphetamine and Amphetamine - The Committee, in setting a meaningful penalty, with the above sentencing principles in mind and having been guided by previous similar cases, has adopted a starting point of a 12-month disqualification in this case. The aggravating factor in this case is that following Mr Swinburne’s breach to Cannabis in March 2014, he obviously continued using drugs, when he knew quite clearly that regular testing in the industry was taking place and would have been aware of the consequences of a further breach. This breach was only 20 months after his previous breach under the drug rule. The Committee determined that this aggravating factor warranted an uplift in penalty which we set at 2 months, taking the penalty to 14 months. We are however able to afford Mr Swinburne a discount for his frank admission of the breach and the self-rehabilitation he has undertaken since his positive test. This combined with the positive character references from his current employer, Mr Rae, and owner Mr Bishop, and with the continued support of his partner, we determined that a generous discount was warranted. This discount we set at 4 months. Therefore, we determined that an appropriate penalty in this case is a disqualification of 10 months.

[25] Information A7128 - THC Cannabis - The Committee, in setting penalty, with the above sentencing principles in mind, have adopted a starting point of a 3-month suspension in this case. An aggravating factor was Mr Swinburne’s 2nd offence to THC-Cannabis since March 2014 under this rule, which warranted an uplift in penalty which we set at 1 month to 4 months. We are however able to afford Mr Swinburne a discount for his admission of the breach and self-rehabilitation he has undertaken. This discount we set at 1 month. Therefore, we determined that an appropriate penalty in this case is a suspension of 3 months to run concurrently with the penalty of 10 months under information A7126.

[26] The Committee strongly urges that, to assist Mr Swinburne in his continuing rehabilitation, he register in the Salvation Army Drug and Alcohol Programme, which is overseen by NZTR Chaplin, Mr Andrew McKerrow.

Penalty

[27] Accordingly, on Information A7126, Mr Swinburne is disqualified for a period of 10 months from the date of this decision up to and including 19 March 2018.

[28] Accordingly, on Information A7128, Mr Swinburne is suspended from holding a licence, for a period of 3 months from the date of this decision up to 19 August 2017 inclusive. This penalty is to be served concurrently with the period of disqualification under Information A7126.

Costs

[29] The only costs sought by the RIU are the ESR costs in relation to analysis of the sample, being $187.50. Mr Swinburne is ordered to pay that amount to NZTR.

[30] The hearing of the charges took place on a race day and, in the circumstances, no order for costs is made in favour of the Judicial Control Authority.

Mr S C Ching           Mr R G McKenzie

Chair                        Committee Member 

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