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Non Raceday Inquiry RIU v L A Burton - Decision dated 30 November 2017 - Chair, Mr P Williams

Created on 06 December 2017

BEFORE THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

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

BETWEEN

RACING INTEGRITY UNIT (RIU) - Informant

AND

Lynn Anthony Burton - Respondent

Judicial Committee: Mr P Williams (Chairman), Mr A Dooley (Committee Member)

Appearing: Mr Oscar Westerlund, Racing Investigator, as the Informant

Mr Lynn Anthony Burton, holder of a Class A Miscellaneous Licence (Stable Hand’s Licence), as the Respondent

Ms Melissa Jane Lange, holder of a Class A Miscellaneous Licence (Stable Hand’s Licence, and Mr Burton’s partner

Mr Chris Gibbs, Licensed Trainer and employer of Mr Burton

Venue: Avondale Racecourse

Date of Hearing: 30 November 2017

Date of Decision: 30 November 2017

DECISION OF JUDICIAL COMMITTEE

1] Mr Burton appears before this Judicial Committee on the following charge:-

THAT on Thursday the 2nd day of November 2017 at the Ruakaka Racecourse, Northland, having been required by a Racing Investigator to supply a sample of urine in accordance with Rule 656(3) of the NZTR Rules of Racing, (Mr Burton) had urine which was found, upon analysis, to contain the controlled drugs Methamphetamine and Amphetamine 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] Rule 656(3) states:

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.

3] At the start of the hearing, Mr Burton confirmed he understood the Rule under which he had been charged and that he admitted the breach of the Rule. He acknowledged all the relevant documents from the RIU had been disclosed to him and consented to them being admitted as evidence.

4] Prior to the hearing commencing Mr Westerlund produced a signed authority from the General Manager of the Racing Integrity Unit, Mr M Godber, dated 13 November 2017 authorising the filing of the Information pursuant to Rule 903(2)(d).

SUMMARY OF FACTS BY THE INFORMANT AND FOLLOW UP DISCUSSION

5] On Thursday 2nd November 2017, officials from the Racing Integrity Unit conducted routine drug testing at the Ruakaka Racecourse, Northland.

6] Lynn Anthony Burton was one of the people randomly selected for testing and was served the appropriate notice at 7.22am by a Racing Investigator.

7] Mr Burton provided the required urine sample at 9.25am. The sample gave an indicative positive test to Methamphetamine and Amphetamine.

8] The sample was given the unique number U302415 and forwarded to the ESR later that day by a Drug Detection Agency (TDDA) authorised agent of the Racing Integrity Unit for confirmation analysis.

9] On the 6th November 2017, the Racing Integrity Unit was advised, in writing, that the sample provided by Mr Burton had, on analysis, been found to contain the controlled drugs Methamphetamine and Amphetamine.

10] A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 657(1) (a) was served on Mr Burton on the 13th day of November 2017 as provided in Rule 911 (1) (e).

11] When spoken to Mr Burton stated that his partner Melissa Lange recently had a miscarriage and two days prior to the test his cousin gave them a cannabis cigarette to smoke and later told them that it was also laced with methamphetamine.

12] Mr Burton had voluntarily stood himself down from any further riding on the 2nd November 2017 until the results of the ESR analysis were confirmed and the Stand-Down Notice served.

13] Mr Burton is currently employed as a Manager for the Donna Logan and Chris Gibbs Stables. He has been employed by Donna Logan and Chris Gibbs for 14 years. He derives his income solely from the racing industry and earns $650 per week. He is a licensed Class A Stable Hand Rider. He has not previously appeared on any rule breaches.

14] The Committee pointed out to Mr Westerlund the error in the TDAA document that said Mr Burton provided his sample at 10.28am when the Summary of Facts said it was 9.25am.

15] Mr Westerlund said that the sample did not test positive for Cannabis which meant the cigarette given to Mr Burton was of synthetic cannabis.

16] To a question from the Committee Mr Westerlund said 12 people were tested on the day and 3 people tested positive to prohibited substances. He added that to his knowledge this was the first time the RIU had undertaken drug testing at Ruakaka in the previous 2 years and Ms Lange added that no testing had been undertaken in the previous 12 years. Mr Burton said that Ms Logan had previously undertaken drug testing of her staff, but no tests had been undertaken in the last 8 years.

SUMMARY OF FACTS BY THE RESPONDENT AND FOLLOW UP DISCUSSION

17] Mr Burton confirmed that he agreed with the summary of facts provided by the RIU. He said on the day of the test that as soon as he saw the testing staff at the racecourse he advised Ms Logan and the RIU that he would fail it as he had smoked a cannabis cigarette 2 days previously that he had subsequently found out had been laced with methamphetamine.

18] Mr Burton provided a letter (also signed by Ms Lange) in which he outlined to the Committee the details of the personal tragedy he and Ms Lange had recently suffered and that in an attempt to get a decent night’s sleep he had accepted a cannabis cigarette from his cousin. It was only after smoking the cigarette that he was told it was laced with methamphetamine.

DECISION

19] As Mr Burton has admitted the breach the charge is found to be proved.

SUBMISSIONS ON PENALTY BY THE INFORMANT

20] The respondent Lynn Anthony Burton is a Licensed Stable Hand Rider under the New Zealand Rules of Thoroughbred Racing. He has been involved in the racing industry all his adult life and has been a licensed track rider for the last 20 years. He has been employed by Donna Logan and Chris Gibbs for the last 14 years.

21] Mr Burton is 43 years of age with a date of birth of 24.12.1973.

22] It is submitted that a period of 10 months disqualification and payment to the RIU of the cost of the ESR analysis of $187.50 should be imposed.

OFFENDING

23] Mr Burton has admitted the breach against Rule 656(3) NZTR, in relation to the positive drug test returned on the 2nd November 2017 at the Ruakaka Racecourse. The details of Mr Burton’s offending are contained in the Summary of Facts which is agreed.

24] New Zealand Thoroughbred Racing has been drug testing industry participants since 1995 and since that time there has been a growing awareness that there is an absolute obligation on those riding horses to present themselves free of the influences of any drugs. All riders are aware of the policy and the consequences should they not comply. The testing is conducted for two reasons, the need to maintain a healthy and safe workplace and secondly to maintain the integrity of the industry.

25] 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.

26] On this occasion Mr Burton presented himself at the Ruakaka Racecourse to ride track work while the drugs Methamphetamine and Amphetamine were within his body. Methamphetamine is a Class A controlled drug within the meaning of the Misuse of Drugs Act 1975.

PENALTY PROVISIONS

27] The penalties which may be imposed are fully detailed in the Charge Rule Penalty Provisions document.

MITIGATING FACTORS

28] Mr Burton has

i] admitted the breach at the first opportunity

ii] been fully co-operative throughout the process

iii] voluntarily stood himself down when he was aware of the positive result of the analysis of his sample.

iv] voluntarily enrolled in the Salvation Army counselling programme.

v] no previous charges before the JCA.

AGGRAVATING FACTORS

29] That Mr Burton should be well aware that the use of Methamphetamine is prohibited under the Rules.

CONCLUSION

30] The RIU therefore seek a 10 months disqualification (backdated to the 2nd November when he was ‘stood-down’) and cost of analysis of $187.50 to the RIU.

31] In his penalty submissions Mr Westerlund placed importance on the principles of sentencing and in particular the importance of rehabilitation of the offender. He said in the cases he had listed none of the offenders had indicated their willingness to voluntarily enrol in a treatment programme or undertake any rehabilitative measures. He asked the Committee to give due consideration to the initiative shown by Mr Burton to rehabilitate himself. He added that the RIU would not oppose either a reduced penalty or suspending a portion of the penalty subject to Mr Burton providing evidence to the RIU and JCA that he had successfully completed the Salvation Army counselling programme.

SUBMISSIONS ON PENALTY BY THE RESPONDENT AND FOLLOW UP DISCUSSION

32] Mr Burton said it was suggested to both him and Ms Lange that they contact Ms Young from the Salvation Army to discuss enrolling in a treatment programme which they have done. He confirmed the first counselling meeting is with the “Bridge Programme” in Whangarei on 13 December 2017 and that will determine what future counselling is required.

33] Mr Burton said he knew what he did was wrong and there was no justification for his actions. He said it was a “one-time thing”, would not happen again and he was very sorry for his actions. He also supplied copies of references from Ms Logan and 2 persons from outside the industry and also a testimonial from Mr Colgan, the General Manager of the Whangarei RC.

34] Mr Burton said they had a 14 year old daughter and Ms Lange had just become pregnant again and he was worried about the financial impact on the family if a period of disqualification was to be imposed. He also asked the Committee to note that, whilst references to previous decisions listed by Mr Westerlund for similar breaches had involved disqualification, the penalty in the Rauhihi case (2 April 2017) was one of suspension and he asked the Committee to consider imposing a similar penalty today.

DISCUSSION AND PENALTY

35] The penalty provisions under Rule 803(3) state:

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

36] The JCA Penalty Guide does not provide a starting point for breaches of this particular Rule and it is therefore incumbent on the Committee to fully consider the specific circumstances of this case when assessing an appropriate penalty. The Committee notes, however, penalties that have been imposed for previous breaches of this Rule including those referred to by Mr Westerlund in his submission, but we do not propose to address individually in this decision the previous cases and principles referred to in his submissions, except to say that we have taken them into account, where relevant, in deciding the final penalty. We are grateful to Mr Westerlund for his most helpful submissions.

37] The committee has carefully considered all the evidence and submissions provided by both parties. Mitigating factors are that Mr Burton admitted the breach and voluntarily stood himself down from trackwork riding on 2 November 2017. This is his first charge under this Rule and it is evident he has been fully co-operative with the RIU throughout the investigation, has shown remorse and taken responsibility for his actions and has voluntarily enrolled in a counselling programme. The Committee commends Mr Burton for taking this action but in in the words of the overview document provided by Ms Young who is the Registered AOD Clinician to the Racing Industry “the use of drugs in order to disengage from his pain was a poor choice”.

38] We have also considered testimonials provided by Mr Burton and the positive comments made by Mr Gibbs during the hearing as to the professionalism shown by Mr Burton in his position as a senior member of his staff. Mr Gibbs said both he and Ms Logan were aware of the circumstances that led up to the positive test and he was confident that what had happened was a one-off. He said that had he or Ms Logan thought at any time in the past that Mr Burton was taking drugs he would not have been given the work responsibilities that he had. He also pointed out that Mr Burton had been nominated, and won the award, for 2017 Stable Hand of the Year in the Northland Region.

39] License holders must, however, understand that methamphetamine and/or amphetamine offences will attract a high penalty sanction and the previous cases referred to provide that guidance. Mr Burton must be held accountable for his actions and any penalty to be imposed must be a deterrent to him or other persons from committing the same or a similar breach. The integrity of the racing industry is always paramount and was compromised on this occasion by the actions of Mr Burton. A drug free environment within the industry is essential as the safety of others and horses is compromised when a person presents themselves with any prohibited substance present in their system.

40] After careful consideration of all the above evidence and submissions provided we believe an appropriate penalty on this occasion is a period of disqualification. We consider a starting point for this breach to be a period of 12 months. This takes into account that it was Methamphetamine and Amphetamine – a Class A drug – detected in Mr Burton’s urine sample. Because Mr Burton has admitted the breach and this is his first breach of the Rule (noting, however, there has been no testing undertaken by the RIU previously at the Ruakaka racecourse) we reduce the penalty by 1 month. In recognition of Mr Burton entering an alcohol, drug and grief counselling programme commencing in mid December we reduce the penalty by a further month. The Committee has therefore decided that on this occasion a penalty of disqualification for a period of 10 months will be imposed and in terms of Rule 1101(1) this period of disqualification will take effect immediately.

PENALTY

41] Mr Burton is disqualified from 30 November 2017 to 29 September 2018.

COSTS

42] The RIU has sought costs of $187.50 being the cost of the analysis undertaken by the ESR and Mr Burton is ordered to pay $187.50 to the RIU. The RIU are not seeking any additional costs. While there have been some costs incurred by the JCA, efforts have been made so that this matter can be dealt with on a Raceday, so there will be no costs awarded in favour of the JCA.

Paul Williams

Chairman

Addendum

The Non Raceday Inquiries – RIU v Lynn Anthony Burton and RIU v Melissa Jane Lange - were held at a combined hearing on 30 November 2017. This was because the facts of each case are identical as were the RIU’s respective penalty submissions. As such there is some content in the written decision relating to Mr Burton that does not appear in the written decision relating to Ms Lange and vice versa all of which, however, was nevertheless fully considered when determining the penalty to be imposed on both. Prior to the hearing commencing the RIU were asked if they had any objections to a joint hearing and there were none. Similarly, Mr Burton and his partner Ms Lange said it was their preference that a joint hearing be held.

Paul Williams

Chairman

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