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Non Raceday Inquiry RIU v J Arbery - Decision dated 11 November 2019 - Chair, Mr A Dooley

Created on 13 November 2019

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

BETWEEN THE RACING INTEGRITY UNIT (RIU)

Informant

AND MR J ARBERY

Track Work Rider

Respondent

Information No: A7193

Date of hearing: 9 November 2019

Venue: Te Rapa racecourse

Appearing: Mr A Cruickshank - Senior Investigator, Racing Integrity Unit

Mr J Arbery – Class B Track Rider

Mrs Arbery – supporting Mr Arbery

Judicial Committee: Mr A Dooley – Chair Mr A Smith – Committee Member

Charge

The Informant, Mr S Irving, Senior Racing Investigator alleged that on the 22nd October 2019 at the Cambridge Jockey Club Training Centre, having been required by a Racing Investigator to supply a sample of your urine in accordance with Rule 656(3) of the NZTR Rules of Racing, Mr Arbery provided a sample which upon analysis was found to contain the controlled drug THC (Cannabis) as defined in the Misuse of Drugs Act 1975.

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, artefacts or isomers.

Penalty Provisions

Rule 803(3) 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.

Mr Arbery said he understood the Rules and confirmed he admitted the breach.

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

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

Summary of Agreed Facts by the Informant

The respondent Jene Tuapokai Arbery is a Class B Miscellaneous (Track-rider) Licensed person under the Rules of New Zealand Thoroughbred Racing.

He is 26 years old and has been involved in the racing industry for 11 years as a Track rider.

On Tuesday 22 October 2019, officials from the Racing Integrity Unit conducted random drug testing at the Cambridge Racecourse.

Mr Arbery was one of 15 people randomly selected for testing and was served with the appropriate notice.

Mr Arbery provided a urine sample which returned a non-negative indicative reading for THC (Cannabis).

The sample was forwarded to ESR for analysis.

When interviewed on the day, Mr Arbery explained that he had smoked Cannabis at home in the weekend as this is what he does socially as he does not drink alcohol.

On 25 October the ESR confirmed that the urine sample provided by Mr Arbery was positive to Cannabis at a THC Acid level of >300 ng/mL.

Mr Arbery has no previous charges under NZTR rules and believes he has been tested by the RIU on 3-4 occasions previously.

Submissions by the Respondent

Mr Arbery said that he does not drink alcohol and was an occasional user of Cannabis. He advised the Committee that he had been medically diagnosed with anxiety and believed that Cannabis assisted in relieving his anxiety.

In response to a question from the Committee, Mr Arbery said that he was made aware of the opportunity for counselling but was advised by the RIU that this would not be considered until after the hearing. This was unfortunate as the opportunity for counselling from Ms D Young, Industry Welfare Drug and Alcohol Clinician, should have been offered to Mr Arbery when the Information was served on him.

Mr Arbery stated that he had learnt his lesson and he would not be smoking Cannabis again.

Decision

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

Submissions on Penalty by Informant

1. Introduction

1.1 The respondent Jene Arbery is a Miscellaneous Class B (Track work Rider) Licence holder under the Rules of New Zealand Thoroughbred Racing (NZTR).

1.2 He is 26 years old and is a freelance track work rider.

1.3 He has held a Track Riders licence for approximately 10 years.

1.4 Mr Arbery has admitted a breach of the Rules in relation to the positive drug test returned at the Cambridge Raceway on 22 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 are aware of the policy and the consequences should they not comply. The testing is conducted to maintain a safe and healthy workplace and to maintain the integrity of the industry.

1.7 Historical penalties for breaches of the industry drug laws show some divergence dependent on the type of drug, the amount of the drug in the system and additional circumstances.

1.8 On this occasion Mr Arbery was track work riding at the Cambridge Jockey Club while the drug THC (Cannabis - level >300ng/mL) was within his body.

1.9 It is submitted that a six week suspension from track riding (backdated to 22 October when he was ‘stood down’) and the costs of the ESR analysis of $187.50 (to the RIU) should be imposed.

2. Offending

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

2.2 The ESR reported level of THC (>300ng/mL) is unhelpful in determining the use of Cannabis by Mr Arbery but is consistent with his explanation. The minimum level tested is 15ng/mL and a high level considered to be over 1000ng/mL.

3. Penalty Provisions

3.1 The penalty provisions for this matter are contained under Rule 803(3): 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.

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. Precedents

5.1 The following are decisions involving track-work riders’ positive to THC Cannabis:

• RIU v JL ROBINSON (27.06.18) – level >300ng/mL; six week suspension and $187.50 costs

• RIU v T ASKEW (05.09.17) – level >300ng/mL; six week suspension and $187.50 costs

• RIU v S COLLINS (19.06.17) – level 78ng/mL; six week suspension and $187.50 costs

• RIU v K ROBINSON (19.11.16) – 270ng/mL; six week suspension and $187.50 costs

6. Aggravating Factors

6.1 Nil

7. Mitigating Factors

7.1 Mr Arbery has been co-operative with RIU staff throughout the investigation and prosecution process.

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

8. Conclusion

8.1 The RIU therefore seek a six week suspension of his Track rider’s Licence (backdated to 22 October when he was ‘stood down’) and costs of the ESR analysis of $187.50 to the RIU.

Submissions of Penalty by Respondent

Mr Arbery was invited to make submissions on penalty and he had nothing to say.

Reasons for Penalty

The Committee have carefully considered all the evidence and submissions presented.

The JCA Penalty Guidelines does not provide a starting point for a breach of this Rule. Cases of this nature are fact dependant. During deliberations we noted that the JCA database showed that the most consistent penalty imposed under this Rule was a 6 weeks suspension. The Committee was not provided with any evidence to deviate away from that period of suspension.

All license holders who work with horses from the stables all the way through to race day will place other industry participants at risk if they are under the influence of drugs.

We have factored in Mr Arbery’s admission of the breach and his clear record under this Rule.

After taking into account all of the above factors the Committee considered that an appropriate penalty was a 6 weeks suspension of Mr Arbery’s track work license.

Penalty

Mr Arbery’s track work license was suspended from 22 October 2019 the date that he stood himself down from riding track work up to and including 3 December 2019.

Costs

The RIU has sought costs of $187.50, being the cost of the sample analysis, and the Committee orders that Mr Arbery pays that sum to the RIU.

As this charge was heard on a race day, there was no order for JCA costs.

Adrian Dooley

Chair

11 November 2019

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