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Non Raceday Inquiry RIU v D Bothamley - Written Decision dated 29 April 2018 - Chair, Prof G Hall

Created on 01 May 2018

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT DUNEDIN

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Racing

BETWEEN RACING INTEGRITY UNIT RIU

Informant

AND DANIEL BOTHAMLEY, Licensed Jockey

Respondent

INFORMATION NO. A8202

COMMITTEE: Prof G Hall (Chairman)

Mr P Knowles (Committee Member)

PRESENT: Mr C Allison for the Informant

Mr D Bothamley in person

DATE OF ORAL DECISION: 24 April 2018

DATE OF WRITTEN DECISION: 29 April 2018

WRITTEN DECISION OF JUDICIAL COMMITTEE

[1] Mr Daniel Bothamley, a Class A and Class D Rider, has admitted a breach of r 656(3) and appears before this Judicial Committee for the imposition of penalty.

[2] Mr Bothamley has been licensed since the 2002/2003 season. He has ridden in a total of 2343 races, for 176 wins, as at 9 April 2018.

[3] On 11 March 2018 Mr Bothamley was one of twelve riders selected for urine drug testing at the Wyndham Racing Club’s annual meeting held at the Gore Racecourse. The riders were all advised in writing of the requirement to undergo testing. This notice advised riders that they were required under the Rules of Racing to provide a urine sample for analysis.

[4] Mr Bothamley was formally advised in writing of the request to supply a sample at 11.59 am and he supplied a sample at 3.59 pm.

[5] The testing was conducted by an authorised person from The Drug Detection Agency who carry out drug testing throughout New Zealand on behalf of various workplace industries. Prior to the test being conducted Mr Bothamley did not disclose the use of diuretics.

[6] Mr Bothamley’s sample number U332939 was forwarded to ESR for analysis. The sample was negative for any illicit drugs. On 23 March 2018 TDDA advised sample number U332939 returned positive for Frusemide. This drug is a diuretic which is used to reduce weight, is banned from the racing industry due to the effects the drug has on the welfare of riders.

[7] Mr Bothamley has a declared riding weight of 56.5 kgs and on the day he had five rides carrying between 58.0 – 59.0 kilograms.

[8] When questioned by a Racing Integrity Investigator on 28 March, Mr Bothamley admitted he had taken a half tablet of Frusemide at around 11.00 am on the day of the races and he was not surprised by the subsequent result. In explanation for taking the diuretic Mr Bothamley advised he was having difficulty with his weight and took the diuretic to attempt to control it.

[9] Mr Allison produced written permission to file a non-raceday information from the General Manager of the RIU, Mr M Godber, in accordance with r 903(2)(d) of the New Zealand Rules of Thoroughbred Racing alleging a breach of r 656(3). The letter was dated 29 March 2018.

[10] Information A8202 states: “On the 11th of March 2018 at the Gore Racecourse Daniel Ramon Bothamley a Class A Rider having been required by Racing Investigator Christopher John Allison to supply a sample of his urine to an authorised person namely Alamein Giller, was found upon analysis to contain the diuretic Frusemide. The respondent is alleged to have thereby committed a breach of Rule 656(3) of the New Zealand Thoroughbred Racing Rules and is liable to the penalties that may be imposed on him pursuant to the provisions of Rule 803(3).”

[11] Mr Bothamley is liable to the penalties which may be imposed pursuant to r 803(1)(a), (b) and (c).

[12] Rule 656(3) provides:

A Rider, or any other 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, 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.

[13] The penalty provisions which apply in this case are in r 803(3), which 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….

[14] As Mr Bothamley has admitted the breach, it is found to be proved.

Submissions as to penalty

[15] Mr Bothamley resides at Invercargill and rides track work at Ascot Park. He rides regularly throughout the South Island.

[16] Rule 656(3) covers the requirements of rider’s responsibility in relation to presenting themselves to ride free of any illicit substances, controlled drugs pursuant to the Misuse of Drugs Act 1975 and diuretics.

[17] Mr Allison identified the four relevant principles of sentencing as follows:

Penalties are designed to punish the offender for his/her wrong doing. They are not meant to be 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 similar offences.

A penalty should also reflect the disapproval of the J.C.A for the type of behaviour in question.

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

[18] Previous cases which Mr Allison believed might be of assistance to the Judicial Committee were:

RIU v Bullard 9 April 2011 — Mr Bullard tested positive for Frusemide. Mr Bullard admitted the breach and was fined $750 and ordered to pay costs of $225 to the JCA.

RIU v Bothamley 9 March 2015 — Mr Bothamley admitted a breach after testing positive for Frusemide. Mr Bothamley requested a suspension rather than a fine due to his financial position. He was suspended for four riding days and ordered to pay costs of $150 to the RIU for the analysing of the sample.

RIU v Stackhouse 9 April 2011 — Mr Stackhouse was an apprentice rider who tested positive to Frusemide. Mr Stackhouse admitted the breach and was fined $650 and ordered to pay $225 costs to the JCA.

RIU v Bishop 23 September 2017 — Mr Bishop admitted a breach after providing a positive test to Frusemide. Mr Bishop was fined $750 and ordered to pay costs of $187.50 to the RIU for the analysing of the sample.

[19] Aggravating factors were that Mr Bothamley was an experienced rider and was aware of the relevant rule. This was Mr Bothamley’s second breach of the rule with the previous breach occurring on 30 November 2014, with the decision dated 9 March 2015. When given the opportunity to disclose the use of any medications prior to the test, Mr Bothamley failed to disclose the use of Frusemide.

[20] Mr Allison identified the mitigating factors to be that Mr Bothamley was co-operative with the Racing Investigators and had conducted himself in a professional manner. He had admitted the charge at the first opportunity and had assisted in having the matter dealt with on a raceday.

[21] Mr Allison emphasised that NZTR has an illicit drug free policy in terms of all riders whether they ride in races, trials or in track work. The Rules were amended in January 2007 to include the diuretic drug Frusemide, and the change came about for the reasons of health and safety, and after consultation with the Jockey’s Association.

[22] The RIU sought a fine of $1,200 and costs of $187.50 for the analysing of the sample with ESR.

[23] Mr Bothamley submitted that he had admitted the breach at the earliest opportunity, had co-operated with the RIU inquiry, and had consented to the matter being heard on raceday to minimise costs. He acknowledged that he had taken a tablet of Frusemide on the morning of the race meeting and that he had ongoing weight issues.

[24] Mr Bothamley submitted a suspension was appropriate, rather than a fine. He stated he was not in a position to meet a financial penalty. In response to questioning by the Committee, he stated he had 3 or 4 rides on a typical raceday. For example, he had three today, although he accepted Mr Allison was correct to point out that one ride was a pick up ride on the day when another rider was unavailable.

[25] Mr Allison submitted that if the Committee was to consider a suspension, it should be one of 6 days.

Decision as to penalty

[26] Our starting point has to be that it is important to maintain the integrity of thoroughbred racing and to reinforce health and safety standards in the work place. It is therefore important to denounce the respondent’s actions and to hold him accountable for what he has admitted was a deliberate decision to take a diuretic on raceday, despite the fact, as an experienced rider, he knew it was contrary to the Rules of Racing and moreover, he had had a previous breach of this rule. Specific deterrence is an obvious consideration in this case.

[27] We observe that Mr Bothamley is an experienced jockey who well understands the Rules of Racing. He has a previous breach of this rule on 15 March 2015 when he was suspended for 4 South Island days.

[28] We have regard to Mr Bothamley’s admission of the breach and his frankness when questioned by Mr Allison.

[29] We believe if we were to fine Mr Bothamley we would be looking at a fine in the region of $1100 to $1200. We have looked at the number of rides Mr Bothamley has had this season and have compared this to the number of race meetings held in that time. We calculate he has averaged two to three rides per meeting but has not been a regular attendee at meetings north of Dunedin.

[30] Mr Bothamley rides solely in the South Island, which we factor into our calculation. Having regard to his culpability, the comparative cases, and the mitigating factors, we believe a 5-day suspension is appropriate. He openly acknowledged that he was not intending to ride at the upcoming Blenheim meeting, and, as days of suspension are to be meaningful, we do not include that meeting in our calculation.

[31] Mr Bothamley is suspended from riding at the end of racing today up to and including 18 May 2018. This is 5 South Island days.

[32] We order costs of $187.50 to cover the ESR’s analysis of the respondent’s sample.

[33] As the matter was heard on raceday there are no JCA costs.

Dated at Invercargill this 29th day of April 2018.

Geoff Hall, Chairman

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