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Non Raceday Inquiry RIU v M J Lange - 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

Melissa Jane Lange - Respondent

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

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

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

Mr Lynn Anthony Burton, holder of a Class A Miscellaneous Licence (Stable Hand’s Licence) and Ms Lange’s partner

Mr Chris Gibbs, Licensed Trainer and employer of Ms Lange

Venue: Avondale Racecourse

Date of Hearing: 30 November 2017

Date of Decision: 30 November 2017

DECISION OF JUDICIAL COMMITTEE

1] Ms Lange 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, (Ms Lange) 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, Ms Lange confirmed she understood the Rule under which she had been charged and that she admitted the breach of the Rule. She acknowledged all the relevant documents from the RIU had been disclosed to her 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] Melissa Jane Lange was one of the people randomly selected for testing and was served the appropriate notice at 7.30am by a Racing Investigator.

7] Melissa provided the required urine sample at 10.48am. The sample gave an indicative positive test to Methamphetamine and Amphetamine.

8] The sample was given the unique number U302426 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 Melissa 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 Melissa on the 13th day of November 2017 as provided in Rule 911 (1) (e).

11] When spoken to Melissa stated that she had recently had a miscarriage and two days prior to being tested, her partner’s cousin gave Ms Lange and her partner Mr Burton a cannabis cigarette to smoke and later told them that it was also laced with methamphetamine. She said she had the cigarette to make her sleep well.

12] Melissa had voluntarily stood herself 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] Melissa is currently employed as a Stable Hand Rider for the Donna Logan and Chris Gibbs Stable. She has been employed by Donna Logan and Chris Gibbs for 12 years. She derives her income solely from the racing industry and earns $600 per week. She is a licensed Class A Stable Hand Rider. She has not previously appeared on any Rule breaches.

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

SUMMARY OF FACTS BY THE RESPONDENT AND FOLLOW UP DISCUSSION

15] Ms Lange confirmed she agreed with the Summary of Facts provided by the RIU. She said she was working with the vets on the morning of the testing taking bloods from all the horses. She said that prior to providing her sample she told the person doing the testing she would prove positive to methamphetamine and had also said the same to Mr Westerlund and Ms Logan who were present whilst the bloods were being taken.

16] Ms Lange said the cigarette (which was shared with Mr Burton) was smoked two days after her miscarriage and like Mr Burton she was not aware it was laced with Methamphetamine until told afterwards.

DECISION

17] As Ms Lange has admitted the breach the charge is found to be proved.

SUBMISSIONS ON PENALTY BY THE INFORMANT

18] The respondent Melissa Jane Lange is a Licensed Stable Hand Rider under the New Zealand Rules of Thoroughbred Racing. She has been involved in the racing industry all her adult life and has been a licensed track rider for the last 16 years. She has been employed by Donna Logan and Chris Gibbs for the last 12 years.

19] Melissa is 33 years of age with a date of birth of 10th February 1984.

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

OFFENDING

21] Melissa has admitted a breach of the Rules in relation to the positive drug test returned at the Ruakaka Racecourse on the 2nd November 2017. The details of Melissa’s offending are contained in the Summary of Facts which is agreed.

22] 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.

23] 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.

24] On this occasion Melissa presented herself at the Ruakaka Racecourse to ride track work while the drugs Methamphetamine (Amphetamine) were within her body. Methamphetamine is a Class A controlled drug within the meaning of the Misuse of Drugs Act 1975.

PENALTY PROVISIONS

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

MITIGATING FACTORS

26] i] That she has admitted the breach at the first opportunity.

ii] That she has been fully co-operative throughout the process.

iii] That she voluntarily stood herself down when she was aware of the positive result of the analysis of her sample.

iv] That she voluntarily enrolled in the Salvation Army counselling programme.

v] That she has no previous charges before the JCA.

AGGRAVATING FEATURES

27] That Melissa should be well aware that the use of Methamphetamine is prohibited under the Rules.

CONCLUSION

28] The RIU therefore seek a 10 months disqualification (back dated to the 2nd November when she was stood down) and cost of analysis of $187.50 to the RIU.

29] 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 Ms Lange to rehabilitate herself. He added that the RIU would not oppose either a reduced penalty or suspending a portion of the penalty subject to Ms Lange providing evidence to the RIU and JCA that she had successfully completed the Salvation Army counselling programme.

SUBMISSIONS ON PENALTY BY THE RESPONDENT AND FOLLOW UP DISCUSSION

30] Ms Lange confirmed she had also enrolled into “Bridge Programme” in Whangarei and would be attending her first session with Mr Burton on 13 December. She was not aware of how long the programme would be as that was going to be determined by the counsellor after the first meeting. She said that if she and Mr Burton were to lose their incomes they would have to relocate out of the area as there was no other work for them. She confirmed they rented a property and estimated the cost of relocating was in the region of $4500.

DISCUSSION AND PENALTY

31] 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

32] 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.

33] The committee has carefully considered all the evidence and submissions provided by both parties. Clearly the events that preceded the smoking of the cigarette meant it was a very traumatic time for Ms Lange and 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 her pain was a poor choice”. Mitigating factors are that she admitted the breach and voluntarily stood herself down from trackwork riding on 2 November 2017. This is her first charge under this Rule and it is evident she has been fully co-operative with the RIU throughout the investigation, has shown remorse and taken responsibility for her actions and has voluntarily enrolled in a counselling programme. The Committee commends Ms Lange for taking this action.

34] We have also considered the testimonial provided by Ms Logan which cites Ms Lange as being an important member of the stable especially in the area of vetting and comments on her great knowledge of horse welfare issues. As with Mr Burton, Mr Gibbs commented on the professionalism shown by Ms Lange in the 12 years she has worked in the stable. 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.

35] 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. Ms Lange must be held accountable for her actions and any penalty to be imposed must be a deterrent to her 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 Ms Lange. 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.

36] 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 Ms Lange’s urine sample. Because Ms Lange has admitted the breach and this is her 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 Ms Lange 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

37] Ms Lange is disqualified from 30 November 2017 to 29 September 2018.

COSTS

38] The RIU has sought costs of $187.50 being the cost of the analysis undertaken by the ESR and Ms Lange 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 Melissa Jane Lange and RIU v Lynn Anthony Burton - 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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