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Non Raceday Inquiry RIU v R Bishop - Decision dated 23 September 2017 - Chair, Mr S Ching

Created on 27 September 2017

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

IN THE MATTER of Information No. A6411

BETWEEN

KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Applicant

AND

RYAN JOEL BISHOP

Class A Jockey

Respondent

Judicial Committee: S Ching (Chairman)

R McKenzie, Member

H Weston, Member

Present: K Williams, Racing Investigator (for the Racing Integrity Unit)

R Bishop, the Respondent

J McLaughlin, Stipendiary Steward, as Registrar

Date of Hearing: 23 September 2017

Venue: Riccarton Park, Christchurch

Date of Decision: 23 September 2017

DECISION OF JUDICIAL COMMITTEE

The Charges

[1] Information A6411 alleges on the 1st day of September 2017, Ryan BISHOP 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 to the authorised person, Ms M Evans (TDDA), 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).

The Plea

[2] The information was initially served by Mrs Williams, Racing Investigator, on Mr Bishop at 10am, on 19 September 2017. Mr Bishop had signed the Statement by the Respondent on the information form indicating that he admitted the breach of the Rule at 9.28am on 21 September 2017.

[3] Mr Bishop was present at the hearing of the information and he confirmed that he admitted the breach and he understood the Rule he was being charged with.

[4] The charge was found proved accordingly.

The Rule

[5] Rule 656 (3) provides as follows:

(3) A Rider, or any other Licence holder 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.

Facts

[6] Mrs Williams produced documentation dated 18 September 2017, from the General Manager of the RIU, Mr M Godber, authorising Mrs Williams under Rule 903(2)(d), to lodge the information against Mr Bishop.

[7] Mrs Williams also provided documentation from TDDA dated 14 September 2017 indicating the positive result for Frusemide.

[8] Mrs Williams, presented the following:

Agreed Summary of Facts:

1. The respondent Ryan Joel BISHOP is a Class A (Jockey) Licence holder under the Rules of New Zealand Thoroughbred Racing. Mr BISHOP has held a licence since June 2002, initially as an apprentice and has held a Class A Jockey’s licence since December 2008. Mr Bishop has had 16 rides this season for 1 win. Lifetime total rides of 1987 rides for 157 wins.

2. On 1 September 2017 jockey testing was conducted at the Ashburton RC meeting at Ashburton Raceway. All riders were tested for alcohol with a number selected for drug and diuretic testing.

3. Mr Bishop was served with a Drug Testing Notification Form by Racecourse Investigator Mrs Williams at 1257hrs. Mr Bishop tested “0” for alcohol at this time.

4. Mr Bishop presented for drug testing at the TDDA (The Drug Detection Agency) Van at 1313hrs and supplied the required urine sample, U301333, to the authorised agent Ms Evans (TDDA).

5. On the 14th of September 2017 TDDA forwarded the confirmation from ESR that Mr Bishop’s sample U301333 was Positive for Frusemide.

6. Mr Bishop was interviewed on 18th September 2017 and admitted taking Frusemide at 9am on the morning of the races to assist with weight loss.

7. Mr Bishop was served with an Information alleging a breach of Rule 656(3) on 19th of September 2017 and admitted the breach.

8. Mr Bishop has not previously been charged with a breach of this rule.

[9] Mrs Williams presented the following;

Informant’s Penalty Submissions

1. Mr Bishop is a Class A (Jockey) Licence holder 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 Bishop has not previously been charged with a breach of this rule.

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 jockey 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 influences 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 and $500 for apprentices.

6. Sentencing Principles -

The four principals 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.

7. Relevant Precedents – In addition to the sentencing principles the Judicial Committee should have regard to relevant precedence in Thoroughbred Racing.

R.I.U. v J Bullard 9 April 2011

Subject: Raceday Jockey – Frusemide – fined $750.

R.I.U. v J Bullard 31 May 2012

Subject: Raceday Jockey – Second offence Frusemide – fined $1,100.

R.I.U. v B Lammas 28 May 2012

Subject: Raceday Jockey – Frusemide unintentionally taken – fined $600.

R.I.U. v D Bothamley 9 March 2015

Subject: Raceday Jockey – Frusemide – suspended 4 days costs $150 ESR sample cost.

Mitigating Factors

8. It is acknowledged that Mr Bishop has admitted the breach and has been very co-operative.

9. Mr Bishop has no previous breaches of this rule.

Aggravating Factors

10. Mr Bishop has been a licence holder for many years and is more than aware of the rules and the requirements to present himself clear of diuretics.

Conclusion

11. It is submitted that a fine of $750 and the cost of the ESR analysis of $187.50 should be imposed.

Costs

12. The RIU are seeking costs for the ESR analysis of the sample of $187.50.

Submissions of the Respondent

[10] Mr Bishop made no submissions to the hearing about the breach.

Penalty submissions of the Respondent

[11] Mr Bishop’s only submission was that a fine was preferred as penalty.

Reasons for Penalty

[12] The relevant penalty Rule is 803(3) which provides:

Rule 803

(1) A person who commits, or is deemed to have committed a breach of these Rules for which a penalty is not provided elsewhere in these Rules shall be liable to:

(a) be disqualified for a period not exceeding 12 months; and/or

(b) be suspended from holding or obtaining a License for a period not exceeding 12 months. If a License is renewed during a term of suspension, then the suspension shall continue to apply to the renewed License; and or a fine not exceeding $20,000.

[13] The Committee have taken into account the four sentencing principles, as set out in Mrs Williams’ submissions above, when considering the appropriate penalty.

[14] In determining penalty, the Committee also took into consideration that the JCA Penalty Guide does not provide a starting point for a breach of this rule. We were therefore drawn to previous penalties for similar breaches which were noted above in the Informant’s Penalty Submissions. Of particular assistance to the Committee was the Bullard case, where it was a first offence combined with Mr Bullard’s ready admission of the breach and his good record. Mr Bullard was fined the sum of $750 on this occasion. The facts of Mr Bishop’s case are almost identical to Mr Bullard’s case. The Committee therefore determined that for the sake of consistency a fine, as submitted by Mrs Williams, of $750, is an appropriate penalty in this case.

Penalty

[15] Accordingly, Mr Bishop is fined the sum of $750.

Costs

[16] The only costs sought by the RIU are awarded, for the ESR analysis of the sample, being $187.50.

[17] The hearing of the charges took place on a race day and, in the circumstances, no order for costs is made in favour of the Judicial Control Authority.

S Ching

Chairman

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