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Non Raceday Inquiry RIU v K M Hampton - Reserved Penalty Decision dated 3 July 2018 - Chair, Mr R G McKenzie

Created on 04 July 2018

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information No. A6424

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

Informant

AND KELVIN MURRAY HAMPTON of Christchurch, Licensed Class B Trainer

Respondent

Date of Hearing: Friday, 29 June 2018

Venue: Addington Raceway, Christchurch

Judicial Committee: Mr RG McKenzie (Chairman)

Mr DJ Anderson (Committee Member)

Present: Mrs KR Williams, the Informant

The Respondent, in person

Date of Oral Decision: 29 June 2018

Date of Written Decision: 3 July 2018

RESERVED PENALTY DECISION OF JUDICIAL COMMITTEE

THE CHARGE

[1] Information No. A6424 alleges that Mr Hampton “on the 24th day of May 2018, at the Riccarton Racecourse, Christchurch, having been required by an Investigator to supply a sample of urine, failed to comply with such request and thereby committed a breach of the said Rule 656(2) 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 19th June 2018 from Mr MR Godber, General Manager for the Racing Integrity Unit, authorising the filing of the information pursuant to Rule 903(2)(d).

[3] The information was subsequently served on Mr Hampton on 22nd June 2018. Mr Hampton signed the Statement by the Respondent indicating that he admitted the breach.

[4] Mr Hampton 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 (2) which provides as follows:

A Stipendiary Steward or Investigator may require 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, to supply a sample at a time and such place nominated by the Stipendiary Steward or Investigator. If so, such Rider, or any other Licenceholder must comply with such a requirement. Any 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, acting in contravention of this Rule shall be reported to NZTR by the Stipendiary Steward or Investigator dealing with the breach and NZTR shall consider whether, in addition to any penalty which may be imposed by the Judicial Committee, such person’s Licence should be reviewed (including having conditions imposed on it), cancelled, withdrawn or suspended under Rule 322(1) of these Rules. [Amended 1 December 2013] [Amended 1 August 2014]

THE FACTS

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

1. The Respondent, Kelvin Hampton, holds a Class B Trainer’s Licence under the New Zealand Rules of Thoroughbred Racing. Mr Hampton has been licensed for over 30 years.

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 Hampton was served with a Drug Testing Notification Form by Racing Investigator Mrs Kylie Williams in the presence of Stipendiary Steward Mr Jeff McLaughlin at 0858hrs on 24th May 2018.

4. Mr Hampton failed to present himself for drug testing at the TDDA (The Drug Detection Agency) Van which was available on course from 1030hrs to 1130hrs. Mr Hampton was advised that if it was not suitable for him to appear for testing at this time then he could be taken to or he could present himself for testing at the TDDA office at any time that day but he was required to do so under the Rules and that should he fail to do so his licence would be suspended.

5. On 25th May 2018 Mr Hampton was advised by phone and in writing by NZTR that his licence had been suspended.

6. Mr Hampton was served with an Information alleging a breach of Rule 656(2) on 22nd June 2018 and admitted the breach.

7. Mr Hampton 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 Hampton is a Class B Trainer Licenceholder and has pleaded guilty to a breach of Rule 656 (2) for failing to supply a sample of his urine after being requested to do so on 24th May 2018.

2. The purpose of the drug testing Rules is to enable random testing to be carried out at any trial, race meeting or training facility at any time to ensure that licenceholders 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. Historical penalties for breaches of the Rules show some divergence dependent on the licence type held.

5. On this occasion Mr Hampton is a Licensed Trainer and was handling horses at the track at Riccarton Racecourse.

6. NZTR took a strong stance in immediately suspending Mr Hampton’s licence when he failed to present for testing. Extract from letter to Mr Hampton: “In addition, NZTR considers that your deliberate refusal to comply with a request from the RIU in relation to drug testing calls into serious question your character and fitness to hold a licence. NZTR considers that it is necessary to suspend your licence because of the paramount importance of safety and the serious consequences for those around you were you to engage in a safety-sensitive activity under the influence of drugs, and with our underlying expectation that all trainers comply with the Rules of Racing without exception. Compliance with the Rules and directions of the RIU in this context is not optional. It takes priority over any other activity.”

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 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.

8. Relevant Precedents –

In addition to the sentencing principles the Judicial Committee should have regard to relevant precedents in Thoroughbred and Harness Racing.

RIU v T Campbell 19 January 2015
Subject: Trackwork Rider - failed to supply a sample - suspended 9 months

RIU v G Robb 23 March 2014
Subject: Open Driver HRNZ – failed to supply a sample – disqualified for 6 months

RIU v C B Ramage 16 July 2012
Subject: Open Driver HRNZ – failed to supply a sample – suspended for 9 months

RIU v M Moka 17 May 2012
Subject: Unlicensed Trackwork Rider – failed to supply a sample –suspended 7 months

RIU v C L E Kennett 9 September 2011
Subject: Open Driver HRNZ – failed to supply a sample – suspended for 9 months and fined $400. Extract from JCA decision: “....the requirements of the drug-testing regime are not negotiable as far as horsemen are concerned. It is obviously a serious matter for a horseman to refuse to comply with the drug-testing requirements and the consequences of a refusal must reflect that.”

NZTR v Thornton 25 May 2010
Subject: Trackwork Rider - stated he was not going to supply - disqualified 6 months

9. This is believed to be the first case that a Thoroughbred trainer has refused to supply a sample.

10. There is provision in the Rules that if a Thoroughbred trainer who is also a track-rider is suspended from track riding, they can continue to train horses (RIU v T Bishop 2016).

11. As Mr Hampton is not a track rider then any suspension will impact directly on his ability to train horses.

Mitigating Factors

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

13. Mr Hampton has no previous breaches of this rule.

Aggravating Factors

14. Mr Hampton has been a licenceholder for many years and is more than aware of the Rules and the requirements to present himself for testing for alcohol and/or drugs when required.

Conclusion

15. It is submitted that a six months suspension of Mr Hampton’s licence, backdated to the 24th of May when Mr Hampton failed to appear for the sample, should be imposed. Mr Hampton should also be required to provide a clear sample before his licence be reinstated.

Costs

16. The RIU are not seeking any costs.

[8] Mrs Williams informed the Committee that the RIU would not be opposed to Mr Hampton applying for a Stablehand’s Licence to enable him to continue working in “mucking out” with his employers, M R & M M Pitman, but not to actually handle horses. He has worked for the stable for 12-13 years, he said.

[9] Mrs Williams said that the RIU believed that any drug involved was probably only cannabis and, for that reason, it was not wished to prevent his continuing to work in a stable.

[10] Mrs Williams responded to a question put by the Committee that the current suspension imposed by New Zealand Thoroughbred Racing will be replaced by any term of suspension of Mr Hampton’s licence imposed by this Committee. Mr Hampton is currently unlicensed and is, therefore, unable to work in a stable. NZTR has advised Mr Hampton that he “may not until further notice from NZTR, undertake any activity which under the Rules is restricted to the holders of trainer’s licences, including but not limited to training thoroughbred horses”.

THE PENALTY RULE

[11] 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 committing that first breach. [Amended 1 August 2014].

STATEMENT BY THE RESPONDENT

[12] Mr Hampton told the Committee that he was aware that drug testing had been carried out on the previous day. On the day in question, 24th May, he had with him his 78-year-old mother-in-law, who suffers from dementia, he said. She requires constant minding, he said. That was the principal reason for his failing to attend to provide a sample. A second reason was that he was unaware, as are a number of trainers he said, that trainers could be randomly tested.

[13] He said that there are many methamphetamine users and the use of that drug had to be stopped. He accepted that drug testing was required in this respect. He is totally opposed to that drug, he said. He explained that he suffers from chronic pain in his hands and is about to lose two fingers. He admitted that he has had “(cannabis) cookies” in the past, taking them at night to help him sleep. He believed that he would have returned a non-negative test, but he is aware that cannabis can stay in one’s system for some time. He does not use cannabis for recreational purposes, he said.

[14] Mr Hampton accepted that he was obliged to report for testing, but he felt that he had to go with his mother-in-law. He was also aware that there were other options open to him by way of complying with the request to present himself for drug testing. He now realises that he could have taken his mother-in-law with him.

REASONS FOR PENALTY

[15] The offence of failing or refusing to supply a urine sample when directed for the purposes of testing for drugs is a serious one.

[16] The statement of the Judicial Committee in the case of RIU v Thornton (2010), mentioned in Mrs Williams’ penalty submissions, is appropriate:

“A refusal to supply a urine sample for drug testing leaves open the inference that Mr Thornton had illicit drugs in his system and as to what those drugs were, is a matter of speculation but suffice it to say that at a minimum, it must have been cannabis, because Mr Thornton admitted to this hearing that he uses cannabis , and that had he been tested on the day , it was likely that there would have been traces of cannabis in his system, Equally, however, we can also draw the inference that there may well have been other drugs in his system”.

[17] Mr Hampton’s explanation for failing to attend for testing is unpersuasive. We have no reason to doubt the veracity of his explanation, but it was naïve of him to think that the circumstances would justify his failing to attend at the TDDA van. As for his not knowing that trainers could be subjected to random testing, the Committee was not impressed by that submission.

[18] The previous cases to which Mrs Williams referred us in her penalty submissions are of limited assistance to the Committee when it comes to determine penalty.

[19] A breach such as the present goes to the integrity of racing. We believe that a suspension is called for and we have taken a starting point of 9 months which was the starting point taken by the Judicial Committee in the 2015 case of Kennett.

[20] It was not submitted to us that Mr Hampton was anything other than of good character. It was his first breach of the Rule, he admitted the breach at the first opportunity and he had been very cooperative during the RIU’s investigation of the charge. We believe that, for those mitigating factors, a discount of 3 months from the starting point of 9 months is appropriate.

[21] In deciding that a penalty of a six-months’ suspension is appropriate, the Committee has had regard to those mitigating factors – Mr Hampton’s good character, his 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 Hampton 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.

PENALTY

[22] Mr Hampton’s Trainer’s Licence (Class B) is suspended for a period of 6 months from 24th May 2018.

[23] The Committee recommends, at the request of the RIU, that NZTR grant to Mr Hampton, upon application, a Stablehand’s Licence which, we understand, will enable him to continue to work in his current employment.

COSTS

[24] There will be no order for costs.

R G McKenzie

CHAIR

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