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Non Raceday Inquiry RIU v J L Robinson - 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 JORDAN LOUISE ROBINSON,

Unlicensed Person

Respondent

Date of Hearing: Saturday, 23 June 2018

Venue: Riccarton Park, Christchurch

Judicial Committee: Mr R G McKenzie (Chairman)

Mr 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. A6421 alleges that Miss Robinson “on the 23rd 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 Miss Robinson on 1 June 2018. Miss Robinson signed the Statement by the Respondent indicating that she admitted the breach.

[4] Miss Robinson was present at the hearing of the information. The charge was read to her, together with the relevant Rules, and she indicated that she understood the Rules and the charge and confirmed that she 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, Jordan Robinson, is currently unlicensed under the New Zealand Rules of Thoroughbred Racing. Miss Robinson was licensed as an Apprentice last season and was first licensed in 2011.

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

3. Miss Robinson was served with a Drug Testing Notification Form by Racing Investigator Mrs Kylie Williams, at 0812hrs on 23 May 2018.

4. Miss Robinson presented for drug testing at the TDDA (The Drug Detection Agency) Van at 1058hrs and supplied the required urine sample, U276151, to the authorised agent, Ms J Dollimore (TDDA).

5. Ms Dollimore, TDDA, advised that Miss Robinson’s sample showed a non-negative result for THC (cannabis) and that the temperature of the sample did not fall within the required range. Miss Robinson provided a further sample, U263317 at 1237hrs. This also showed a non- negative result for THC (cannabis).

6. Miss Robinson was interviewed and advised of the non-negative results and that the samples were to be forwarded to ESR for analysis. Miss Robinson admitted having been around a person who smoked Cannabis regularly. Miss Robinson immediately voluntarily stood down from all safety sensitive activities involving horses.

7. On the 28th of May, Miss Robinson was issued with an official stand down letter under Rule 657(1)(a) & (b) and advised that her licence was automatically withdrawn until such time as the Judicial Committee issues a substantive decision in relation to the information filed and that she will be required to produce a clear sample before it will be reinstated under rule 657(2)(b). Miss Robinson was given copies of the positive results to THC (Cannabis) as reported by ESR. The report advised the results from samples U276151 and U263317 were Positive with a level of >300ng/ml.

8. Miss Robinson 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.

9. Miss Robinson was served with an Information alleging a breach of Rule 656(3) on 1st June 2018 and admitted the breach.

10. Miss Robinson 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. Miss Robinson is currently unlicensed and has pleaded guilty to a breach of Rule 656(3) for supplying a sample of her urine which was found upon analysis to contain the controlled substance THC acid (cannabis) at a level of >300ng/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. Miss Robinson works for a trainer and rides trackwork.

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 Miss Robinson was handling and riding horses at Riccarton Racecourse while the drug THC (Cannabis) was in her 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.

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

The first three principles are particularly important here. In regard to the fourth principle Miss Robinson 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 week 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 week 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.”

9. Mitigating Factors -

It is acknowledged that Miss Robinson has admitted the breach at the first opportunity and has been very co-operative during this investigation. Miss Robinson has no previous breaches of this rule.

Aggravating Factors -

10. Miss Robinson has been a licenceholder for many years and was previously licensed as an Apprentice Jockey and is more than aware of the Rules and the requirements to present herself alcohol and drug free.

11. Miss Robinson has confirmed that she is around people that regularly smoke cannabis which may have resulted in the high result of >300ng/ml.

12. Miss Robinson 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. Miss Robinson therefore has not completed any course available that would have allowed us to seek a reduced sentence.

Conclusion -

13. It is submitted that Miss Robinson be stood down (suspended) from holding a licence for six weeks, backdated to the 23rd of May when she voluntarily stood down from safety sensitive activities. Miss Robinson 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] Miss Robinson told the hearing that she accepted the Summary of Facts as presented by Mr Williams.

[10] Miss Robinson said the she freely admitted the breach and was prepared to accept any penalty. She did not wish to say any more about that. She had nothing to add in relation to penalty.

[11] She said that she no longer works in the racing industry, wishing to obtain more secure and more remunerative employment. She is aware of the requirements should she return to the industry in the future. She had had 17 rides when licensed as an Apprentice Jockey, which was some time ago, she said.

REASONS FOR PENALTY

[12] The only explanation put before the Committee to account for Miss Robinson’s testing positive to cannabis at trackwork on 23rd May 2018 was, as contained in the Summary of Facts, that she “had been around a person who smoked Cannabis regularly”. She did not wish to elaborate on that explanation before the Committee.

[13] Miss Robinson told the Committee that she is no longer working in the racing industry, a fact which renders any penalty ineffectual. Nevertheless, the Committee is required to impose a penalty in spite of that. In the event that she returns to the industry at some time in the future, the present charge will be on her record. This is the best result that the Committee can achieve.

[14] 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 has recently dealt with two trackwork riders by way of a 6-weeks’ suspension, although in one of those cases the period 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 Miss Robinson but she elected not to undergo any counselling, as she was entitled to do. That election, no doubt, had to do with her having left the industry.

[15] The Committee sees no reason to differ from recent penalties and the penalty handed down in the recent cases 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.

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

[17] Miss Robinson has voluntarily stood herself down from “Safety Sensitive Activities” since 24th May and we are satisfied that any period of suspension can be backdated to that date.

[18] Accordingly, Miss Robinson is suspended from holding or obtaining a licence from 23rd May 2018 up to and including 4th July 2018.

COSTS

[19] 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, Miss Robinson 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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