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Non Raceday Inquiry RIU v D Janson - Written Decision dated 28 August 2017 - Chair, Mr T Utikere

Created on 29 August 2017

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

AT AUCKLAND

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Thoroughbred Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND D JANSON

Licensed Trackwork Rider

Respondent

Judicial Committee: Mr Tangi Utikere (Chairman), Mr Adam Smith (Member)

Appearing: Mr O Westerlund (for the Informant) – Mr D Janson (as the Respondent)

Venue: Alexandra Park, Auckland

Date of Hearing: 25 August 2017

Date of Written Decision: 28 August 2017

DECISION OF JUDICIAL COMMITTEE

[1] Mr Damien Janson appears before this Judicial Committee on two alleged breaches of Rule 656(3) of the New Zealand Thoroughbred Rules of Racing.

[2] The committee was in receipt of the Notice of Judicial Committee Appointment, the Authorisation to Charge from Racing Integrity Unit (RIU) General Manager Mr Mike Godber and a copy of Informations A8458 and A8459.

[3] Information A8458 alleged a breach of Rule 656(3) by Mr Janson and specifically alleged that: "On Thursday the 29th day of June 2017, at Byerley Park Training Centre, Karaka, 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."

[4] Information A8459 alleged a breach of Rule 656(3) by Mr Janson and specifically alleged that: “On Thursday the 29th day of June 2017, at Byerley Park Training Centre, Karaka, 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.”

[5] 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.”

[6] The relevant Penalty provisions are contained in Rule 803(3) which states:

“Subject to Rule 803(2)(b), where any 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 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 Licence holder 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.”

[7] Mr Janson attended the hearing alongside Racing Investigator Mr Westerlund for the RIU.

[8] He confirmed that he had received all the relevant documentation, understood the rule and admitted the breach.

RIU SUBMISSIONS

[9] Mr Westerlund presented the following Agreed Summary of Facts to the hearing:

On Thursday 29th June 2017, officials from the Racing Integrity Unit conducted routine drug testing at Byerley Park Training Centre, Karaka. Damien Rowland JANSON was one of the people randomly selected for testing and was served the appropriate notice at 6.44am by a Racing Investigator.

Mr JANSON provided the required urine sample at 8.00am. The sample gave an indicative positive test to Methamphetamine, Amphetamine and THC (Cannabis). The sample was given the unique number U301509 and forwarded to the ESR later that day by a Drug Detection Agency (TDDA) authorised agent of the Racing Integrity Unit for confirmation analysis.

On the 13th July 2017, the Racing Integrity Unit was advised, in writing, that the sample provided by Mr JANSON had, on analysis, been found to contain the controlled drugs Methamphetamine, Amphetamine and THC (Cannabis >300 ng/mL). A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 657(1)(a) was served on Mr JANSON on the 23rd day of July 2017 as provided in Rule 911(1)(a).

When spoken to Mr JANSON stated that he had smoked a Cannabis cigarette about 5 days prior to the test but denied that he had taken Methamphetamine. On the 23rd July 2017 he further stated that he had made inquiries about the methamphetamine and was told by his friend that the Cannabis cigarette he smoked was also laced with methamphetamine.

Mr JANSON had voluntarily stood himself down from any further riding on the 29th June 2017 until the results of the ESR analysis were confirmed and the Stand Down Notice served.

Mr JANSON is currently employed as a Farm Manager. He is a licensed freelance part time track rider at Byerley Park Training Centre.

He has one previous rule breach for riding with THC (Cannabis) in his system from 2007.

[10] Mr Westerlund had no further submissions to add.

RESPONDENT’S SUBMISSIONS

[11] Mr Janson told the Committee that he had been with a friend on a hunting trip and had a cigarette. He was unaware that it was cannabis until he had smoked it, and he was not aware at the time that it had methamphetamine in it. When he was advised by the RIU of the positive result his friend confirmed that the cigarette had been laced.

[12] He said he was riding for Trainer Peter Williams as he had some of his staff on leave and Mr Janson had been asked to fill in for two weeks. While this was the first time he had ridden for Mr Williams, he had ridden for Shaun Clotworthy approximately one year earlier. He had previously held a Horse Trainer’s licence in 2005 and had also continued to undertake trackwork riding soon after that. He described himself as a part-time trackwork rider.

[13] He said his previous breach in 2007 for cannabis resulted $500 fine and that he had also been ordered to pay some costs and produce a clear urine sample.

[14] Mr Janson apologised for wasting everyone’s time on this matter and said that he was very disappointed in himself.

DECISION

[15] As the charges were admitted, the Committee deemed both charges proved.

PENALTY SUBMISSIONS

[16] Mr Westerlund submitted the following written submissions on penalty:

INTRODUCTION:

1.1 The respondent Damien Rowland JANSON is a Licensed Track Rider under the New Zealand Rules of Thoroughbred Racing.

1.2 He has been involved in the racing industry all his adult life and is a licensed track rider for the last two years.

1.3 Mr JANSON is 40 years of age with a date of birth of 4th March 1977.

1.4 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.

OFFENDING:

2.1 Mr JANSON has admitted 2 x Breaches against Rule 656(3) NZTR, in relation to the positive drug test undertaken on the 26th June 2017 at Byerley Park Training Centre.

2.2 The details of Mr JANSON’s offending are contained in the Summary of Facts which have been agreed to.

2.3 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.

2.4 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.

2.5 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.

2.6 On this occasion Mr JANSON presented himself at Byerley Park Training Centre to ride track work while the drugs Methamphetamine, Amphetamine and THC (Cannabis) were within his body.

2.7 Methamphetamine is a Class A controlled drug, Amphetamine is a Class B controlled drug and THC (Cannabis) is a Class C controlled drug within the meaning of the Misuse of Drugs Act 1975.

2.8 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.

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

PENALTY PROVISIONS:

3.1 The penalties which may be imposed are fully detailed in the Charge Rule Penalty Provisions document.

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 offending in question.

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

4.2 All four principles apply in this matter.

PRECEDENTS:

5.1 In support of this penalty I will refer to six previous decisions by the J.C.A which may be of some assistance.

5.1.1 RIU v SWINBURNE (22.05.17) –In this case an unlicensed track rider tested positive to Methamphetamine, Amphetamine and Cannabis (77ng/mL). He was sentenced to 10 months disqualification on the Methamphetamine and Amphetamine charge and 3 months suspension on the Cannabis charge, to be served concurrently, in addition to the costs of $187.50.

5.1.2 RIU v 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.

5.1.3 RIU 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.

5.1.4 RIU v HEEMI (24.11.16) -In this case a licensed track work rider tested positive to Cannabis. He received a 6 week suspension and costs of $187.50.

5.1.5 RIU v ROBINSON (24.11.16) -In this case a licensed track work rider tested positive to Cannabis (270 ng/mL). He received a 6 week suspension and costs of $187.50.

5.1.6 RIU v COLLINS (19.06.17) –In this case a licensed track work tested positive to Cannabis (78 ng/mL). He received a 6 week suspension and costs of $187.50.

MITIGATING FACTORS:

6.1 That he has admitted the breach at the first opportunity.

6.2 That he has been fully co-operative throughout the process.

6.3 That he voluntarily stood himself down when he was aware of the positive result of the analysis of his sample.

AGGRAVATING FEATURES:

7.1 That Mr JANSON should be well aware that the use of Methamphetamine and Cannabis is prohibited under the Rules.

7.2 That he had previously tested positive to Cannabis as a track rider and was fined $500 plus costs. (JCA v D Janson – 10.01.2007).

8. CONCLUSION:

8.1 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.

[17] Mr Westerlund had nothing further to add to his written submissions.

[18] Mr Janson said that he had been involved in the racing game since he left school at 13 years of age, and while he had a full-time job as a Farm Manager, he enjoyed helping people out at trackwork where he was able to.

[19] He identified that disqualification would prove difficult for him as he had a number of friends who were involved in the racing industry and that he would still like to go to the racetrack to see horses work.

[20] He also confirmed that he understood that previous penalties for methamphetamine and amphetamine had resulted in periods of disqualification rather than the imposition of a period of suspension.

[21] Mr Janson advised the committee that he did not have a drug dependency issue, and that this was simply a one-off stupid mistake. He had tried to obtain a clear drug test ahead of the hearing, but financial circumstances did not allow him to do that.

[22] He asked the Committee to consider imposing a suspension in addition to a fine so that he could avoid a disqualification.

REASONS FOR PENALTY

[23] On Thursday 29 June 2017 Mr Janson was randomly selected to undertake urine testing. The sample that he provided gave an indicative positive to methamphetamine, amphetamine and THC (Cannabis). The sample was forwarded to ESR for further analysis, and on 13 July the RIU was advised in writing that the sample provided by Mr Janson had been found to contain these three drugs. Mr Hanson was subsequently informed by a friend that the cannabis he had taken five days prior to the test had been laced with methamphetamine. The respondent is 40 years of age and employed as a Farm Manager.

[24] The RIU have suggested a 12 month period of disqualification is an appropriate penalty to impose. They rely on previous decisions involving Class A and B drugs, which have attracted a period of disqualification rather than a suspension.

[25] Mr Janson has taken responsibility for his actions and has labelled his offending as nothing more than a stupid mistake. He has said that a disqualification would cause significant inconvenience to him as he would be unable to socialise and maintain a realistic interest in racing. It is for this reason that he seeks a combination of a suspension and fine.

[26] The RIU has also invited this Committee to consider treating the two drug offences as one offence for the purpose of penalty. We decline to do so. It has been suggested that both charges arose from the same event. While this may be so, there is still a possibility that they have arisen from separate occasions. The course of action that we will take will be to impose two separate penalties. The reason for doing so is that two separate Informations have been laid by the RIU against the respondent; one for methamphetamine and amphetamine and one for cannabis. Mr Janson has elected to admit both breaches. The Committee also notes that the ESR analysis returned a reading for the THC at a high level, namely >300ng/ml. The other reason for adopting this course of action is that in our considered view the end result will not be more punitive on Mr Janson as the penalties will be served concurrently.

[27] When a licensed person rides whilst having methamphetamine and/or amphetamine in their system they pose a serious health and safety issue for others. The same is said for cannabis. On this occasion the respondent has returned a positive to a spectrum of Class A, B and C controlled drugs under the Misuse of Drugs Act 1975. Drug related offences also go to the heart of the integrity of the racing industry and in particular Class A and B controlled drug offences have attracted significant penalties to act as a deterrent.

[28] Licence holders must therefore understand that methamphetamine and/or amphetamine offences will attract a high penalty sanction, and the previous cases that the RIU have referred to provide that guidance.

[29] In relation to Information A8458 the Committee therefore considered it appropriate to deal with this matter by way of a period of disqualification. There is no specified starting point in the Penalty Guide for Judicial Committees for a breach of this rule. In the context of this specific breach we therefore consider an appropriate starting point to be a 12 months period of disqualification.

[30] In mitigation we have had regard to Mr Janson's early admission of the breach, his co-operation, acknowledgement of his wrongdoing and that he has shown genuine remorse for his actions. We also note that he has no previous breaches for methamphetamine or amphetamine. We are prepared to afford him a discount of two months in recognition of these mitigating features.

[31] While the RIU suggest the aggravating features to be Mr Janson's previous cannabis charge in 2007 and that as a licence holder there was a requirement for him to be aware of the Rules of Racing, we consider these to be neutral factors.

[32] The end result on this charge will be a ten months period of disqualification to take effect immediately.

[33] In relation to Information A8459 we have considered all the submissions placed before us and have reached the conclusion that this offence is best dealt with by way of a period of suspension. The cases that Mr Westerlund has referred us to have been very helpful in this regard.

[34] In mitigation we have considered Mr Janson's early admission of the breach and his co-operation with the judicial process.

[35] The RIU have referred to a previous breach for cannabis back in 2007. This offence occurred more than ten years ago for which Mr Janson was fined. Given the passage of time, we do not consider this to be a significantly aggravating feature of the respondent's offending.

[36] When considering all factors we determine that a six week period of suspension is appropriate. This will be backdated to the date of his stand down, which means that this penalty has effectively already been served.

[37] On the matter of costs, we consider it appropriate for Mr Janson to pay the ESR analysis fee. The RIU are not seeking any additional costs. While there have been some costs incurred by the JCA, efforts have been made so that this matter can be dealt with on a Raceday, so there will be no costs awards in favour of the JCA.

DECISION

[38] On Information A8458, Mr Janson is disqualified for a period of ten months, commencing immediately.

[39] On Information A8459, Mr Janson's Trackwork Licence is suspended from 30 June 2017 until 11 August 2017, a period of six weeks. This takes effect from the date of his Stand Down, and has in effect already been served.

COSTS

[40] The respondent is ordered to pay $187.50 in costs to the RIU. There is no further costs order in favour of the JCA.

T Utikere

Judicial Committee Chairman

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