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Non Raceday Inquiry RIU v L Callaway - Reserved Decision dated 8 December 2020 - Chair, Mr R G McKenzie

Created on 08 December 2020

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information Number A5027

BETWEEN KYLIE ROCHELLE WILLIAMS, Investigator for the Racing Integrity Unit

Informant

AND LEE CALLAWAY of Christchurch, Licensed Jockey (Class A)

Respondent

Date of Hearing: Friday, 4 December 2020

Venue: Riccarton Park, Christchurch

Judicial Committee: R G McKenzie (Chair)

S C Ching

Present: Mr M R Davidson, Stipendiary Steward (for the Informant)

Mr L Callaway (the Respondent)

Date of Decision: 8 December 2020

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY

THE CHARGE

[1] Information No. A7236 alleges that:

“On the 29th day of October 2020, Lee Callaway being the holder of a Class A Jockey’s licence issued under the New Zealand Thoroughbred Racing Rules, having been required under Rule 656(1) by Racecourse Investigator, Mrs Williams, to supply a sample of his urine, which 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)”.

[2] Mrs Williams had filed a letter dated 1 December 2020 signed by Mr M R Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 903(2)(d) authorising the filing of the Information (Exhibit “A”).

[3] The Information was served on the Respondent by email on 1 December 2020.

[4] Mr Callaway was present at the hearing. The charge and Rule were read to him. He acknowledged that he understood the charge and the Rule, and indicated that he admitted the charge.

[5] Mr Callaway having admitted the charge, it was found proved pursuant to Rule 915(1)(d).

THE RULES

[6] The relevant Rule is as follows:

656(3) 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.

SUMMARY OF FACTS

[7] Mr Davidson presented the following written summary of facts:

1. The Respondent, Lee Callaway, is a Class A (Jockey) Licenceholder under the New Zealand Rules of Thoroughbred Racing. Mr Callaway has held a licence since 2003 and has ridden in over 3847 races for 238 wins.

2. On 29 October 2020, Jockey testing was conducted at the Ashburton RC meeting. All riders were tested for alcohol with a number selected for drug and diuretic testing.

3. Mr Callaway was served with a Drug Testing Notification Form by Racecourse Investigator, Mrs Williams, at 12.28pm. Mr Callaway tested “0” for alcohol at this time.

4. Mr Callaway presented for drug testing at The Drug Detection Agency (TDDA) van at 1.30pm and supplied the required urine sample, U373591, to the authorised agent.

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

6. Mr Callaway was advised that the sample was being sent for diuretic testing. Mr Callaway did not disclose that he had used Frusemide, despite being aware that its use is prohibited under the Rules.

7. On 27 November 2020, TDDA forwarded the confirmation from the Canterbury District Health Board that Mr Callaway’s sample U373591 was positive for Frusemide (Exhibit “B”).

8. Mr Callaway was interviewed on 30 November 2020 and admitted taking Frusemide several days earlier to assist with weight loss.

9. Mr Callaway was served with an Information alleging a breach of Rule 656(3) on 1 December 2020 and admitted the breach.

10. This is Mr Callaway’s first offence for a breach of this Rule. However, he has a previous breach of Rule 656(4) in 2016, after returning a breath alcohol level above the permitted level, with his Jockey’s licence being suspended for one month.

[8] The above summary of facts was read to the hearing. Mr Callaway confirmed that he had been served with a copy of that summary prior to the hearing and that he accepted the facts as set out in the summary.

PENALTY SUBMISSIONS OF INFORMANT

[9] Mr Davidson presented the following written penalty submissions. It was agreed that these could be taken as read:

1. Mr Callaway is a Class A (Jockey) Licenceholder 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 Callaway resides in Christchurch and trains and rides trackwork 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 Jockeys 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 influence 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. Relevant Precedents – In addition to the sentencing principles the Judicial Committee should have regard to relevant precedents in thoroughbred racing.

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

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

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

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

R.I.U. v R J Bishop (23 September 2017)
Subject: Raceday Jockey – Frusemide – fined $750 - $187.50 ESR sample cost.

R.I.U. v J D Laking (29 April 2018)
Subject: Raceday Jockey – Frusemide – fined $650 - $187.50 ESR sample cost.

R.I.U. v J D Laking (9 June 2019)
Subject: Raceday Jockey – Second offence Frusemide – fined $1,000 - $187.50 ESR sample cost.

Mitigating Factors

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

Aggravating Factors

8. Mr Callaway has been a Licenceholder for many years and is more than aware of the Rules and the requirements to present himself clear of diuretics, especially after being subjected to drug testing several times in recent years.

9. When given the opportunity to disclose the use of any medications prior to the test, Mr Callaway failed to advise the use of Frusemide and again when he was told the sample was being sent specifically for diuretic testing.

Conclusion

10. It is submitted that a fine of $750 - $1,000 be imposed.

Costs

11. The RIU are seeking costs of the analysis of the sample of $190.

SUBMISSIONS OF THE RESPONDENT

[10] Mr Callaway suggested that he was “the most tested Jockey in New Zealand”. This breach was the first occasion on which he had tested positive for a diuretic or, for that matter, any drug, in the 17 years that he had been riding.

[11] He said that he had a number of things, personal issues, going on in his life that had taken his focus away from matters such as his weight. He had taken the diuretic pills the day before the Winton meeting on 26 October. He had taken them the day before, as he understood that they only stayed in the system for 12 hours, he said. He believed that he could not get his weight down without them. So, prior to being tested at Ashburton, it was three days since he had taken the pills, he said. He believed that he had not used diuretics since their use became outlawed under the Rules (1 January 2007).

[12] Mr Callaway referred to the penalties, referred to in the Informant’s penalty submissions, and to the fact that, he alleged, he had been tested on so many occasions and this was his first breach of the illicit substance / diuretic Rule. He stated that he would prefer a fine to a suspension, notwithstanding that some of his current problems were financial ones.

[13] Mr Callaway was asked by the Committee whether he had been having weight-related problems on an ongoing basis. He said that he had his weight under control prior to the COVID-19 lockdown earlier in the year. A lot of his personal issues had been related to the lockdown and he had experienced some weight problems since the end of lockdown.

[14] Mr Davidson confirmed that Mr Callaway may have had one weight offence in recent times. He is not a regular offender and will always tell the Stewards, he said. (The Committee notes that Mr Callaway received a fine of $100 at Timaru on 9 October last, for failing to make the weight for one ride and was replaced).

[15] Mr Callaway assured the Committee that he does not use diuretics. On this occasion, it was a “stupid mistake” and he was trying to do the right thing for his Owners, as he does not like letting people down.

[16] Mr Callaway explained that he had to ride at 54 kg at the Winton meeting and, for that reason, took the diuretics. He believed that, in taking them the day before the race meeting, he would be safe. He did not have any weight problem as far as his rides at Ashburton, two days later, were concerned as his lightest ride that day was at 57 kg.

THE PENALTY RULE

[17] The Penalty Rule is Rule 803(3) which provides:

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

REASONS FOR PENALTY

[18] The New Zealand Thoroughbred Racing Rules of Racing were amended as from 1 January 2007 to prohibit the use of diuretics, of which Frusemide (also known as Furosemide) is one.

[19] In its decision in the case of Stackhouse in 2011, the Judicial Committee said the following:

The “water pill” had previously been used by jockeys as a weight loss aid by removing retained fluid. While it is effective to a point in achieving this, it does have adverse side effects which include dehydration and electrolyte imbalance, which may result, among other things, in weakness, lethargy, drowsiness and low blood pressure. It is self-evident that a jockey should not be riding while suffering from any of those side effects. To do so places himself, his fellow riders and horses at risk and the Rule is designed to avoid this. The Rule exists for a very good reason. For that reason, jockeys (as well as track riders) must be made aware that use of any diuretic will not be tolerated.

Another important side effect is, we understand, nausea.

[20] Mr Callaway has told the Committee that the COVID-19, which closed South Island racing this year for approximately 3 months from the end of March before resuming at the end of June, had led to ongoing personal issues in his life which led to, among other things, the beginning of weight issues. He, misguidedly, succumbed to personal pressure and, in an attempt to take a ride or rides at 54 kgs at the meeting of Winton JC on 26 October, he took Frusemide tablets the day before to assist with weight loss. It appears that, three or four days later at Ashburton, that diuretic was still in his system. The Committee understands that it is not unknown for a diuretic to remain in the system for 3-4 days under certain conditions. We, therefore, accept Mr Callaway’s explanation for the presence of Frusemide in his urine sample at Ashburton. However, the fact remains that he had taken the drug, which he readily admits.

[21] In recent years, breaches of Rule 856(3) involving the use of Frusemide have been relatively rare. Most of those recent breaches have been referred to by the Informant in her penalty submissions. We believe that the most relevant penalties, for first offences, have ranged between $650 and $1,000. For the purposes of assessing penalty in this case, we have taken the upper figure of that range ($1,000) as a starting point.

[22] Mitigating factors, highlighted by the Informant in her penalty submissions, are Mr Callaway’s admission of the breach and his conducting himself in a professional manner during the course of the investigation. There is also his previous good record to be taken into account. We have not taken into account, as an aggravating factor, his breath-alcohol breach in 2016. That breach was under a different Rule and the circumstances were quite different.

[23] The Informant raised two matters as aggravating factors. Firstly, that Mr Callaway was well-aware of the need to present himself to ride clear of diuretics. We do not regard this as an aggravating factor but, rather, an element of the breach itself. Secondly, Mr Callaway did not disclose the use of any medications either prior to the test or later when told the sample was being sent for testing for diuretics. We accept that he held a genuine belief that the Frusemide, taken by him on 26 October, would have left his system at the time that he gave the sample at Ashburton.

[24] The Committee sees no relevant aggravating factors.

[25] As stated, we have taken a starting point for penalty of a fine of $1,000. Mr Callaway should receive a discount from that starting point for the mitigating factors referred to (clause [21]). We have fixed that discount at 20%.

[26] The Committee believes that the resulting fine of $800 is in accordance with the usual principles of sentencing – that is to say, to hold Mr Callaway accountable for his offending, to promote in him a sense of responsibility for and an acknowledgement of that offending and the need to denounce his conduct. We have also taken into account the need to deter others from committing the same or a similar offence.

PENALTY

[27] Mr Callaway is fined the sum of $800.

COSTS

[28] The hearing took place on a raceday and, therefore, there will be no order for costs other than to order, which we do, that Mr Callaway pay to the Racing Integrity Unit the sum of $190 being the costs incurred in the analysis of the sample.

R G McKenzie

CHAIR

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