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Non Raceday Inquiry RIU v D S Long - Reserved Penalty Reasons dated 27 June 2018 - Chair, Mr R G McKenzie

Created on 29 June 2018

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information No. A6421

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND DARYL STUART LONG, Licensed Stablehand / Trackwork Rider

Respondent

Date of Hearing: Saturday, 23 June 2018

Venue: Riccarton Park, Christchurch

Judicial Committee: R G McKenzie (Chairman)

D J Anderson (Member)

Present: Mrs K R Williams, the Informant

The Respondent, in person

Date of Oral Decision: 23 June 2018

Date of Written Decision: 27 June 2018

RESERVED PENALTY REASONS OF JUDICIAL COMMITTEE

THE CHARGE

[1] Information No. A6423 alleges that Mr Long “on the 24th day of May 2018, at the Riccarton Racecourse, Christchurch, 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 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”.

[2] Mrs Williams produced a letter dated 31 May 2018 from Mr M R Godber, General Manager for the Racing Integrity Unit, authorising the filing of the information pursuant to Rule 903(3)(d).

[3] The information was subsequently served on Mr Long on 1st June 2018. Mr Long signed the Statement by the Respondent indicating that he admitted the breach.

[4] Mr Long was present at the hearing of the information. The charge was read to him, together with the relevant Rules, and he indicated that he understood the Rules and the charge and confirmed that he admitted the charge. The charge was found proved accordingly.

THE RULE

[5] The relevant Rule is Rule 656(3) which provides as follows:

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. [Amended 1 December 2013] [Amended 1 August 2014].

FACTS

[6] Mrs Williams presented the following written Summary of Facts:

1. The Respondent Daryl Long is a Class B Rider licenceholder under the New Zealand Rules of Thoroughbred Racing. Mr Long has held a licence since 1988 when he was first licensed with a Permit to Train

2. On the 23rd and 24th May 2018 drug testing was conducted at Riccarton Racecourse. Fifteen people were selected for testing for drugs.

3. Mr Long was served with a Drug Testing Notification Form by Racing Investigator Mrs Kylie Williams at 0903hrs on 24 May 2018.

4. Mr Long presented for drug testing at the TDDA (The Drug Detection Agency) Van at 1039hrs and supplied the required urine sample, U330567, to the authorised agent Ms J Dollimore (TDDA).

5. Ms Dollimore, TDDA, advised that Mr Long’s sample showed a non-negative result for THC (cannabis).

6. Mr Long was interviewed and advised of the non-negative results and that the samples were to be forwarded to ESR for analysis.

7. Mr Long admitted having smoked cannabis the previous weekend.

8. Mr Long immediately voluntarily stood down from all safety sensitive activities involving horses.

9. On the 30th of May, Mr Long was issued with an official stand down letter under Rule 657(1)(a) & (b) and advised that his licence was automatically withdrawn until such time as the Judicial Committee issues a substantive decision in relation to the information filed and that he will be required to produce a clear sample before it will be reinstated under rule 657(2)(b).

10. Mr Long was given a copy of the positive results to THC (Cannabis) as reported by ESR. The report advised the results from sample U330567 was positive with a level of 20ng/ml.

11. Mr Long was given the opportunity to have a meeting with Dianna Young, AOD Clinician to the Racing Industry, and elected not to take up this opportunity.

12. Mr Long was served with an Information alleging a breach of Rule 656(3) on 1st June 2018 and admitted the breach.

13. Mr Long has not previously been charged with a breach of this Rule.

PENALTY SUBMISSIONS OF INFORMANT

[7] Mrs Williams presented the following written penalty submissions to the hearing:

1. Mr Long is a Class B Rider (Trackwork) Licenceholder and has pleaded guilty to a breach of Rule 656(3) for supplying a sample of his urine which was found upon analysis to contain the controlled substance THC acid (cannabis) at a level of 20ng/ml.

2. The purpose of the drug testing rules is to enable random testing to be carried out at any trial, race meeting or public training track at any time to ensure that licence holders that are engaged in Safety Sensitive Activities are drug free.

3. The safety and welfare of all licenceholders and horses is paramount. Testing has been conducted since 1995 and licenceholders are aware there is an absolute obligation under the Rules to present themselves free of the influences of any drugs. All participants are aware of the policy and the consequences should they not comply. The testing is conducted to ensure a safe and healthy workplace and to maintain the integrity of the industry.

4. Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975.

5. Historical penalties for breaches of the Rules show some divergence dependent on the type of drug, the amount of the drug in the system and other mitigating and aggravating factors.

6. On this occasion Mr Long was handling and riding horses at Riccarton Racecourse while the drug THC (Cannabis) was in his body.

7. 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.

● 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.

The first three principles are particularly important here. In regard to the fourth principle, Mr Long elected not to be assessed by Dianna Young, AOD Clinician to the Racing Industry.

8. Relevant Precedents – In addition to the sentencing principles the Judicial Committee should have regard to relevant precedence in Thoroughbred and Harness Racing.

R.I.U. v T Askew 31 August 2017
Subject: Trackwork Rider – controlled substance THC acid (Cannabis) – >300ng/ml – suspended for six weeks and costs of $187.50 to the RIU.

R.I.U. v L Burton 8 October 2012
Subject: Unlicensed Trackwork Rider – controlled substance THC acid (Cannabis) – 30ng/ml – suspended for six weeks and costs of $187.50 to the RIU.

R.I.U v N Bishop 1 August 2012
Subject: Junior Horsewoman – controlled substance THC acid (Cannabis) 300ng/ml – suspended for 6 months, costs $397.21. Extract from JCA decision: “The use of drugs seriously impugns the integrity of racing, and in particular, the safety of horsemen and women and horses being driven at race meetings.”

R.I.U. v I J Brownlee 24 December 2015
Subject: Open Horseman - controlled substance THC acid (Cannabis) 73ng/ml – second offence suspended for 9 months, costs $187.50. Extract from JCA decision: “Both the informant and respondent made reference to the relatively low level of THC referred to in the Analyst Certificate (73ng/ml). We have not placed too much weight on this submission given that according to the Analyst Certificate “THC Acid levels do not indicate impairment or when or how much cannabis is used. …and send a clear message to other industry participants that there is no place for illegal substance use within the industry.”

R.I.U. v G J Thomas 17 July 2014
Subject: Open Horseman - controlled substance THC acid (Cannabis) 220ng/ml – suspended for 5 months, costs $172.20. Extract from JCA decision: “There is a need to hold Mr Thomas accountable and to denounce his actions. There is also a need to impose a penalty that emphasises general deterrence.”

Mitigating Factors -

9. It is acknowledged that Mr Long has admitted the breach at the first opportunity and has been very co-operative during this investigation.

10. Mr Long has no previous breaches of this Rule.

Aggravating Factors -

11. Mr Long has been a licenceholder for many years and is more than aware of the Rules and the requirements to present himself alcohol and drug free.

12. Mr Long was given the opportunity to have a meeting with Dianna Young, AOD Clinician to the Racing Industry, and elected not to take up this opportunity. Mr Long therefore has not completed any course available that would have allowed us to seek a reduced sentence.

Conclusion -

13. It is submitted that an appropriate penalty is a six-weeks’ suspension of Mr Long’s licence backdated to the 23rd May when Mr Long voluntarily stood down from safety sensitive activities. Mr Long is also required to provide a clear sample before being issued with a licence.

Costs

14. The RIU are seeking costs for the ESR analysis of the sample of $187.50.

THE PENALTY RULE

[8] The penalty Rule is Rule 803(3) which provides as follows:

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,

provided that if the Licenceholder committing an alcohol related breach is a Trainer and it is that Trainer’s first offence under these Rules in relation to drugs or alcohol from the date Rule 803(3) came into effect, then that Trainer may be fined a sum not exceeding $50,000 but shall not be suspended or disqualified for that first breach.

STATEMENT BY THE RESPONDENT

[9] Mr Long said that he accepted the Summary of Facts presented by Mrs Williams.

[10] Mr Long said the reading was very low. He also asked the Committee to take into account his clear record. The offence was a “silly mistake” and he knows now not to “touch it”. He assured the Committee that he will not reoffend. He has so much invested in the industry, he said. He is a licensed trackwork rider and has previously been a licensed trainer.

[11] He said he was quite prepared to accept the penalty submitted by Mrs Williams and had nothing to add in relation to penalty.

REASONS FOR PENALTY

[12] The Committee was impressed by the contrition showed by Mr Long when he appeared before it. He seemed to be clearly sorry for his offending and his expressed intention not to reoffend in a similar manner in the future was accepted by the Committee. He stated that he was committed to continuing to work in the racing industry and accepted that it was no place for drug use.

[13] The Committee is aware that recent first offence breaches of the Rule involving cannabis use by trackwork riders have been met with a penalty of a 6-weeks’ suspension. That was the penalty submission of Mrs Williams. This Committee recently dealt with a trackwork rider by way of a 6-weeks’ suspension, although in that case it was reduced to 4 weeks on the condition that the Respondent undergo a counselling plan put in place by the AOD Clinician to the Racing Industry. That offer was available to Mr Long but he elected not to undergo any counselling, as he was entitled to do.

[14] The Committee sees no reason to differ from recent penalties and the penalty handed down in the recent case referred to – that is to say, a suspension of 6 weeks. That penalty is consistent with recent similar decisions and, we are satisfied, an appropriate penalty in all of the circumstances of this case.

[15] In deciding that penalty, the Committee has had regard to the mitigating factors – Mr Long’s admission of the breach, his cooperation and his previous good record. In addition, the Committee has had regard to the important principles of sentencing – to hold Mr Long accountable, to promote in him a sense of responsibility for his offending, to denounce his conduct and to deter others from committing the same or similar offence.

[16] Mr Long has voluntarily stood himself down from “Safety Sensitive Activities” since 24th May and we are satisfied that any period of suspension can be backdated to that date.

[17] Accordingly, Mr Long is suspended from 24th May 2018 up to and including 5th July 2018.

COSTS

[18] The Informant did not seek an order for costs and, since the hearing took place on a raceday, there will be no order for costs in favour of the JCA. However, Mr Long is ordered to pay to the RIU the sum of $187.50 being the cost of the ESR analysis of the sample.

R G McKenzie

CHAIR

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