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Non Raceday Inquiry RIU v B Harrison - Decision dated 14 November 2019 - Chair, Mr B Scott

Created on 18 November 2019

BEFORE A JUDICIAL COMMITTEE

APPOINTED BY THE JUDICIAL CONTROL AUTHORITY

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

BETWEEN RACING INTEGRITY UNIT

Simon Andrew Irving

Investigator

Informant

AND Brendon HARRISON

Licensed Person

NZTR

Respondent

Information No: A7194

Date of Hearing: 8 November 2019

Venue: Cambridge Raceway

Appearing: Mr A Cruickshank – Senior Investigator, Racing Integrity Unit on behalf of Mr Irving

Mr B Harrison – Class E Rider

Ms J Eras – supporting Mr Harrison

Judicial Committee: Mr BJ Scott, Chairman – Mr AJ Godsalve - Committee Member

DECISION OF JUDICIAL COMMITTEE DATED 14 NOVEMBER 2019

Charge

The informant, Mr S Irving, Senior Racing Investigator alleged that on the 24th October 2019 at Cambridge Raceway you wilfully failed to perform an act ordered by an Investigator to be performed by him AND THAT you are thereby liable to the penalty imposed pursuant to Rule 803 of the said rules.

Rule 801(1)(k) provides:

A person commits a Serious Racing Offence within the meaning of these Rules who wilfully fails to perform an act ordered by a Tribunal, NZTR, Stipendiary Steward or Investigator to be performed by him.

Penalty Provisions

Rule 803(1) states:

A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them 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 Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

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

Mr Harrison said that he understood the rules and confirmed that he admitted the breach.

Mr Harrison acknowledged that all relevant documents from the RIU have been disclosed to him. Mr Harrison said he accepted the contents of the documents and consented to them being submitted as evidence.

Mr Cruickshank produced a letter from Mike Godber the General Manager of Racing Integrity Unit authorising the filing of information pursuant to Rule 903(2)(d).

Summary of Facts

1. The respondent Brendon Harrison holds a Class E (Amateur Rider) Licence under the Rules of New Zealand Thoroughbred Racing.

2. He is 25 years old and rides track work predominantly for TR trainers Nick Smith and Shane Crawford in Cambridge.

3. On the mornings of 22 and 24 October 2019, officials from the Racing Integrity Unit conducted random drug testing at the Cambridge Raceway.

4. On 24 October the respondent was one of eight people randomly selected for testing who were riding or carrying out a ‘Safety Sensitive Activity’.

5. At 6.41am he was served with a Drug Testing Notification Form by Racing Investigator Oscar Westerlund as he exited the training track riding a horse.

6. Mr Westerlund explained to the respondent that testing was to commence at 6.30am and conclude at 10.30am and that the testing area was the white van parked near the main office.

7. The respondent acknowledged he understood and accepted the notice.

8. Approximately 15 minutes later the respondent was again spoken to by RI Irving while driving out of his employer’s property nearby.

9. He identified himself and stated he had already received a notice.

10. By 10.30am the respondent had not attended the TDDA van to provide a sample.

11. Inquiries were made with his employer Nick Smith and attempts were made to contact the respondent by telephone, with no reply.

12. The respondent did not supply a sample in accordance with the Rule and as directed by the Investigator per Rule 656(2).

13. Mr Harrison, by not attending the facility to provide a sample has wilfully failed to perform an act ordered by an Investigator.

14. Mr Harrison resides in Cambridge, has been riding track-work for a few years and has held an Amateur Licence for the last two seasons with seven race-day rides.

15. He has no previous JCA charges.

Submissions by the Respondent

Mr Harrison said that it was a pretty basic mistake on his part. He said that he did carry on riding a few more horses after being served with the Notice and that took him to about 10.30. He then said that he didn’t answer phone calls because he panicked after being served with the Notice. He said that he had smoked Cannabis and he thought that he would give a positive test. He said further that if he had have known that the penalties for not appearing for drug testing were so high he would have turned up for the test.

He said that he realises the position that he has put himself in and he is prepared to accept the consequences.

Decision

As Mr Harrison admitted the breach the Committee found the charged proved.

Submissions on Penalty by the Informant

1. Introduction

1.1 The respondent Brendon Kevin Harrison is a Class E (Amateur) Licence holder under the Rules of New Zealand Thoroughbred Racing (NZTR).

1.2 He is 25 years old and is a freelance track-work rider who rides mainly for TR trainers Nick Smith and Shane Crawford.

1.3 He has been involved in the industry since he was 14 years old and was first licenced as a track rider in 2012.

1.4 Mr Harrison has admitted a breach of the Rules in relation to failing to present himself for drug testing at Cambridge Raceway when directed on 24 October 2019.

1.5 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.

1.6 All riders should be aware of the policy and the consequences should they not comply.

1.7 The testing is conducted to maintain a safe and healthy workplace and to maintain the integrity of the industry.

1.8 RIU records indicate that Mr Harrison has not previously been tested.

1.9 It is submitted that a 12 month suspension of his licence (backdated to 25 October when Mr Harrison was ‘stood down’) should be imposed.

2. Offending

2.1 The details of Mr Harrison’s offending are contained in the Racing Integrity Unit Summary of Facts.

3. Penalty Provisions

3.1 The penalty provisions for this matter are contained under Rule 803(1):

A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them 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 Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

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

3.2 Of note is the penalty provisions for a breach of the Rules relating to human drug positives is contained in Rule 803(3) where the maximum disqualification is five years and/or a $50,000 fine.

4. Sentencing Principles

4.1 The four principles of sentencing can be summarised briefly:

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

• In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences

• A penalty should also reflect the disapproval of the JCA for the type of behaviour in question

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

4.2 All four principles apply in this matter.

5. Precedent

5.1 The most recent case involving a track rider who failed to present for a drug test as directed by an investigator was RIU v T CAMPBELL (19.01.2015). The penalty in this case was a nine month suspension.

5.2 Other historic cases involving riders failing to provide a drug sample as directed are:

RIU v MG MOKA (17.05.2012) – unlicensed track rider; seven month suspension

NZTR v JR THORNTON (25.05.2010) – track rider; six month disqualification

NZTR v SJ YETTON (25.09.2009) – track rider; eight month disqualification

5.3 The standard penalty for track riders positive to the Class C drug Cannabis is a six week suspension. Recent penalties for track rider’s and harness driver’s positive to the Class A drug Methamphetamine range from a 10 month suspension (and a $2000 fine) to a 10 month disqualification:

RIU v BURTON (30.11.2017) – Track rider tested positive when track riding, 10 month disqualification

RIU v JANSON (28.08.2017) – Track rider tested positive when track riding, 10 month disqualification

RIU v RAUHIHI (02.04.2017) – Track rider tested positive when track-riding, 11 month suspension

RIU v THORBY (03.03.2017) - HR amateur driver tested positive on a race day, 10 month suspension and $2000 fine

5.4 The implications of disqualification and suspension in this case are summarised as:

Under Rule 1104(1) a person who is disqualified shall not:

(b) ride any horse in a Race or be employed in any capacity in connection with the training or racing of horses; and/or

(c) enter or go upon any Racecourse or any Training Facility or other place owned or controlled by any Club.

Under Rule 1106(1) a person who is suspended shall not:

(b) ride any horse in any Race

Under Rule 324 only a licence holder may ride a horse at any Racecourse, Training Facility or Trainer’s Premises.

Under Rule 327 a trainer shall not employ or otherwise permit to work or to assist in any capacity in connection with the care, control or training of any horse: (b) any unlicensed person.

5.5 It is submitted that the CAMPBELL decision is disproportionate to the more recent penalties imposed on thoroughbred positives for anything but Cannabis and provides no incentive for licence holders to comply with the drug testing procedure in the knowledge that they may test positive to a Class A drug. A penalty for failing to present must therefore exceed or at least equal the penalty for providing a sample positive to a Class ‘A’ drug.

6 Aggravating Factors

6.1 When Mr Harrison did not present himself for testing, Investigators and his Employer attempted to contact and left messages for him on several occasions but received no response until 3.45pm the following day.

7 Mitigating Factors

7.1 Mr Harrison has been co-operative with RIU staff through the prosecution process.

7.2 He has admitted the breach at the earliest possible stage.

7.3 He has had no previous charges before the Committee.

7.4 Following referral by the RIU, Mr Harrison has engaged with the NZ Racing Drug and Alcohol counsellor.

8 Penalty

8.1 In the decision of Rauhihi the Committee noted “We accept the comment, made in RIU V Thorby where in reference to RIU v Brownlee, the committee stated that it "...saw no need to deprive the respondent of his industry related livelihood completely which related in suspension rather than disqualification being ordered". It is clear that disqualification would have a massive financial implication upon Mr Rauhihi’s ability to earn a living and provide for his family.”

8.2 Mr Harrison currently derives his livelihood solely from the industry as a track rider for two Cambridge based trainers.

8.3 He averages 10 rides per morning earning approximately $750 net per week.

8.4 A 12 month suspension or disqualification would therefore penalise him financially in the vicinity of $39,000.

8.5 As a stable hand his potential earnings would be approximately half his annual wage.

8.6 An appropriate penalty should be Mr Harrison’s loss of income from track-riding, not his potential earnings as a stable-hand and he has stated that he is not in a position to pay a fine.

8.7 Mr Harrison has stated that he “panicked” when directed to submit to a drug test on the Thursday morning as he knew he would likely test positive for Cannabis. He also stated that following the RIU drug testing at Cambridge on the Tuesday morning he had conducted a ‘self-test’ in which he was positive to Cannabis.

8.8 As the RIU cannot determine categorically what drug or drugs may have been in Mr Harrison’s system, any penalty must reflect the more serious Class ‘A’ drug range and any other evidence presented before and considered by the Committee.

9 Conclusion

9.1 The RIU therefore seek a 12 month suspension of Mr Harrison’s licence (backdated to 25 October when he was ‘stood down’).

9.2 No costs are sought by the RIU.

Submissions on Penalty by Respondent

Mr Harrison said it was an honest mistake. He said he would have turned up if he had have known that for having Cannabis in his system meant he would have faced a six week suspension. He also said that he fully understands why the charge refers to a Class A drug because he realised that it would be easier for people with Class A drugs in their system not to turn up if the penalties were treated lightly.

Mr Harrison also said that he was trying to make a career in racing. He said that he had previously worked in a Harness Stable for two years and then he went on to work at a Stud Farm for seven years and now is a Trackwork Rider. He said it was his plan next year to apply for his Jumps Jockey Licence but bearing in mind the likely penalty that will not happen next year.

He said that he does smoke Cannabis from time to time and certainly not every day. He further said that during the winter when he was riding as an Amateur Rider he did not use Cannabis at all.

Reasons for Penalty

The Committee carefully considered the evidence and the submissions presented to us.

We are not helped by the JCA Penalty Guidelines and in respect to previous breaches of this Rule there is only the Campbell case that we can refer to. Mr Irving however suggested that the Campbell case is inadequate.

We take a serious view of licence holders who work with horses from the stables being under the influence of drugs. They place other industry participants at risk.

Mr Harrison has told us today that he had smoked Cannabis and we do not condone the use of Cannabis at all. In not undergoing the testing Mr Harrison has left open for doubt the type of drugs that might be in his system and he realises that. Mr Harrison has learnt a very valuable lesson as a result of this charge.

We have however, had the opportunity at this hearing of having Mr Harrison speak to the Committee not only about his acknowledgement of the need for a deterrent penalty but he also spoke to us about his passion for the Racing Industry and his desire to succeed in that Racing Industry. His history of employment will show that he is trying to make his way in the Racing Industry and he presents to us today as a person who is very straight forward and he wants to succeed.

We have taken the view that imposing penalty that it should be creative in that it is giving Mr Harrison some incentive to take steps to deal with his use of Cannabis and/or any drugs. We are quite certain that he has learnt a valuable lesson as a result of this charge.

Mr Harrison is supported today by his fiancé and any penalty on Mr Harrison will affect them.

We agree with Mr Irving and Mr Cruickshank that the appropriate penalty would be a 12 month suspension of Mr Harrison’s Riders Licence. We have discussed the possibility of suspending parts of that penalty on the basis that Mr Harrison completes two clear drug tests when required by the Racing Integrity Unit and at his cost in the early part of his suspension.

We are therefore going to impose a 12 month suspension of Mr Harrison’s licence but the last four months of that will be suspended so long as Mr Harrison completes two clear drug tests as randomly required by the Racing Integrity Unit and at his cost. If those drug tests are clear then the suspension will be one of eight months in total. The suspension can be back dated to 25 October 2019 when Mr Harrison was stood down.

Penalty

Mr Harrison is suspended from holding or obtaining a Riders Licence for a period of 12 months from 25 October 2019. The condition of his suspension is that if Mr Harrison completes two clear drug tests at his cost and as randomly organised by the Racing Integrity Unit then the last four months of his suspension will be suspended.

Costs

The RIU did not seek costs and as this charge was heard on a race day there is no order for JCA costs.

BJ Scott

CHAIRMAN

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