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Non Raceday Inquiry RIU v J D Laking - Decision dated 9 June 2019 - Chair, Mr S Ching

Created on 12 June 2019

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

IN THE MATTER of Information No. A7228

BETWEEN

KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Applicant

AND

JASON DARRYL LAKING

Class A Jockey

Respondent

Judicial Committee: S C Ching (Chairman)

R G McKenzie, Member

Present: K R Williams, Racing Investigator (for the Racing Integrity Unit)

J D Laking, the Respondent

Date of Hearing: 6 June 2019

Venue: Christchurch-via teleconference

Date of Decision: 9 June 2019

DECISION OF JUDICIAL COMMITTEE

The Charges

[1] That, on the 4th day of May 2019, Jason LAKING, being the holder of a Class A Jockey’s licence issued under the New Zealand Thoroughbred Racing Rules and having been required under Rule 656(1) by Racecourse Investigator Mrs Williams to supply a sample of his urine to the authorised person, Ms D Sampson (TDDA). This sample 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).

The Plea

[2] The information was served by Mrs Williams, Racing Investigator, on Mr Laking at 9.20am, on 30 May 2019. Mr Laking had signed the Statement by the Respondent on the information form indicating that he admitted the breach.

[3] This hearing was held via tele-conference as agreed by all parties. At the hearing, Mr Laking confirmed that he admitted the breach and he understood the Rule he was being charged with.

[4] The charge was found proved accordingly.

The Rule

[5 Rule 656 (3) provides as follows:

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.

Facts

[6] Mrs Williams produced documentation dated 28 May 2019, from the General Manager of the RIU, Mr M Godber, authorising Mrs Williams under Rule 903(2)(d), to lodge the information against Mr Laking.

[7] Mrs Williams also provided documentation from TDDA dated 20 May 2019 indicating the positive result for Frusemide.

[8] Mrs Williams, presented the following:

Agreed Summary of Facts

1. The respondent Jason Darryl LAKING is a Class A (Jockey) Licence holder under the New Zealand Rules of Thoroughbred Racing. Mr LAKING has held a licence since 1999, as an Apprentice, Amateur and Class A Jockey. Mr LAKING has ridden in over 3500 races for 359 wins.

2. On the 4 May 2019 jockey testing was conducted at the Canterbury JC meeting at Riccarton Racecourse. All riders were tested for alcohol with a number selected for drug and diuretic testing.

3. Mr LAKING was served with a Drug Testing Notification Form by Racecourse Investigator Mrs Williams at 1117hrs. Mr LAKING tested “0” for alcohol at this time.

4. Mr LAKING presented for drug testing at the TDDA (The Drug Detection Agency) Van at 1345hrs and supplied the required urine sample, U361514, to the authorised agent.

5. The sample screened negative for “illicit drugs”.

6. Mr LAKING was advised that the sample was being forwarded to ESR for DIURETIC testing and he then advised the authorised agent that he had taken half a tablet of “Frusemine” that morning. This was not initially disclosed despite Mr LAKING being aware that it’s use is prohibited under the Rules.

7. Mr LAKING was interviewed and admitted taking half a tablet of Frusemide on the morning of the races to assist with weight loss.

8. On the 20th of May 2019 TDDA forwarded the confirmation from ESR that Mr LAKING’s sample U361514 was Positive for Frusemide.

9. Mr LAKING was advised of the result on 21st May 2019.

10. Mr LAKING was served with an Information alleging a breach of Rule 656(3) on 30th of May 2019 and admitted the breach.

11. This is Mr LAKING’s second offence as he was previously charged with a breach of this rule, which was also related to the use of Frusemide, in April 2018 and was fined $650.

Informant’s Penalty Submissions

1. Mr Laking is a Class A (Jockey) Licence holder 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 diuretic Frusemide.

2. Mr Laking resides in Ashburton and rides track work in the Canterbury region and is a regular rider throughout the South Island.

3. 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 jockeys/riders ride drug free. The safety and welfare of both jockey and horses is paramount. Testing has been conducted since 1995 and riders are aware there is an absolute obligation under the rules to present themselves free of the influences of any drugs or diuretics. All riders 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. Frusemide is a potent diuretic used to reduce fluid retention. It interferes with salt and water absorption in the kidneys and increases the amount of water lost from the body in the urine and is incorrectly taken to reduce weight quickly.

5. Historical penalties for breaches of the rules show the standard penalty for senior riders is $750 to $1,500 or riding suspensions of 4 - 6 riding days.

6. 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.

● In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offenses.

● 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.

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

R.I.U. v J Bullard 9 April 2011
Subject: Raceday Jockey – Frusemide – fined $750.

R.I.U. v J Bullard 31 May 2012
Subject: Raceday Jockey – Second offence Frusemide – fined $1,100.

R.I.U. v D Bothamley 9 March 2015
Subject: Raceday Jockey – Frusemide – suspended 4 days costs $150 ESR sample cost.

R.I.U. v D Bothamley 29 April 2018
Subject: Raceday Jockey – Second offence Frusemide – suspended 5 days costs $187.50 ESR sample cost.

Mitigating Factors

8. It is acknowledged that Mr Laking has admitted the breach and has been co-operative throughout and has conducted himself in a professional manner.

Aggravating Factors

9. Mr Laking has been a licence holder for many years and is more than aware of the rules and the requirements to present himself clear of diuretics especially after being charged with a breach of this rule in 2018 which was also related to the use of Frusemide.

10. When given the opportunity to disclose the use of any medications prior to the test Mr Laking failed to advise the use of FRUSEMIDE and only did so once he was told the sample was being sent to ESR.

11. Mr Laking obviously did not learn from the previous charge despite what was reported in the decision: “Mr Laking said that he had been prescribed Frusemide by his doctor and had had the drug from the time before he had taken a break from racing. When questioned by the Committee, he said he had disposed of the drug and expressed a determination not to resort to its use again.”

Conclusion

12. It is submitted that a fine of $1000 or a suspension of Mr Laking’s race day licence for six riding days be imposed. Mrs Williams explained to the hearing that the RIU was seeking a suspension of 6 South Island days, the district where Mr Laking usually rides. She also submitted that a period of suspension in weeks rather than days, be considered if the Committee determined that a suspension was an appropriate penalty.

Costs

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

Submissions of the Respondent

[9] Mr Laking elected to make no submissions to the hearing in regard to the breach.

Penalty Submissions of the Respondent

[10] After discussion Mr Laking submitted that he would prefer a fine to a suspension as penalty.

Reasons for Penalty

[11] The relevant penalty Rule is 803(3) which provides:

(1) A person who commits, or is deemed to have committed a breach of these Rules 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 License is renewed during a term of suspension, then the suspension shall continue to apply to the renewed License; and or 

a fine not exceeding $20,000.

[12] The Committee have taken into account the four sentencing principles, as set out in Mrs Williams’ submissions above, when considering the appropriate penalty.

[13] In determining penalty, the Committee took into consideration that the JCA Penalty Guide does not provide a starting point for a breach of this rule. We were therefore drawn to previous penalties for similar breaches which were noted above in the Informants Penalty submissions. The aggravating factors, we consider relevant in this case, are firstly, that this is Mr Laking’s second breach in just over a year. The first offence was in April 2018 with this second offence being in May 2019, 13 months later. Secondly, we agree with Mrs Williams, that Mr Laking has been a licence holder for many years and is well aware of the rules regarding Frusemide, especially since his previous breach 13 months prior, thirdly, the failure to disclose the use of the medication prior to the test, only doing so when he knew the sample was being sent to ESR.

[14] We must also consider the mitigating factors, which we determined were Mr Laking’s ready admission of the breach, his cooperation and the professional manner in which he has conducted himself throughout the judicial process. Of particular assistance to the Committee, were the Bullard cases, where the first offence, in April 2011, was dealt with by way of a fine, that being $750. Mr Bullard’s second offence, just over a year later in May 2012, was dealt with by way of a $1,100 fine. The facts and timeline of Mr Laking’s case are almost identical to Mr Bullard’s cases.

[15] After considering the submissions from Mrs Williams and Mr Laking on penalty, this Committee determined that a fine was an appropriate penalty in this case. Again, we were drawn to the Bullard case where the Committee on that day adopted a $1500 starting for his second offence within 13 months.

[16] We have determined, after taking the aggravating factors into consideration that an appropriate starting point, as in the Bullard case, be a fine of $1500. We are however able to afford Mr Laking a combined discount for his ready admission of the breach, his cooperation and the professional manner in which he has conducted himself throughout the judicial process. This discount we set at $300.

[17] We therefore determined that an appropriate penalty in this case is a fine of $1200.

[18] Of note, we advised Mr Laking, that a further breach of this rule, in relation to the diuretic Frusemide, in the future may result in a Judicial Committee imposing a lengthy suspension of his Class A Licence as penalty.

Penalty

[19] Accordingly, Mr Laking is fined the sum of $1200.

Costs

[20] The only costs sought by the RIU are awarded, for the ESR analysis of the sample, being $187.50.

[21] The hearing of the charges took place via tele conference and, in the circumstances, no order for costs is made in favour of the Judicial Control Authority.

S C Ching          R G McKenzie

Chair                 Member

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