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Non Raceday Inquiry RIU v S Rauhihi - Written Decision dated 2 April 2017 - Chair, Mr T Utikere

Created on 05 April 2017

BEFORE THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Racing

BETWEEN RACING INTEGRITY UNIT (RIU)
Informant

AND STEPHEN RAUHIHI

Respondent

Judicial Committee: Mr Tangi Utikere (Chairman), Mr Tom Castles (Member)

Appearing: Mr S Irving (for the Informant) – Mr S Rauhihi (as the Respondent)

Also Present: Mr R Rauhihi, Ms S Gordon

Venue: Judicial Room, Manawatu Raceway

Date of Hearing: 29 March 2017

Date of Written Decision: 2 April 2017

DECISION OF JUDICIAL COMMITTEE

[1] Mr Rauhihi appears before this Judicial Committee on the following charge:

Information Number A4187

THAT on the 4 th November 2016 at Foxton Racecourse, having been required by a Racing Investigator to supply a sample of your urine in accordance with Rule 656(3) of the NZTR Rules of Racing, you provided urine which upon analysis was found to contain the controlled drug Methamphetamine as defined in the Misuse of Drugs Act 1975 AND THAT you are liable to the penalty imposed pursuant to Rule 803 of the said rules.

[2] The rule reads as follows:

Rule 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.”

[3] The relevant Penalty Provisions are contained in Rule 803(3) which states:

“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,”

[4] Mr Rauhihi attended the hearing with the support of his father Mr Rauhihi and his father's partner, Ms S Gordon.

[5] He confirmed that he had received all the relevant paperwork, understood the rule and that he admitted the breach.

[6] Mr Irving presented the following agreed Summary of Facts to the hearing:

The respondent Stephen Toko RAUHIHI is a Licenced Track-rider under the Rules of New Zealand Thoroughbred Racing. He is 32 years old and has been involved in the racing industry all his working life as a track-rider.

On Friday the 04th November 2016 officials from the Racing Integrity Unit conducted random drug testing at the Foxton Racecourse. Mr RAUHIHI was one of the people randomly selected for testing and was served with the appropriate notice. Mr RAUHIHI provided a urine sample at 10.20am which returned a non-negative indicative reading for Amphetamine, Methamphetamine, Opiates and THC (Cannabis). The sample was forwarded to the ESR for analysis.

When interviewed on the day, Mr RAUHIHI explained that he had smoked Cannabis 2-3 weeks ago when socialising with friends but stated that he had not taken any other drugs.

On the 11th November the ESR confirmed that the urine sample provided by Mr RAUHIHI was positive to Methamphetamine and Codeine but there was insufficient sample left to complete the analysis for Cannabis.

When spoken to regarding the ESR results Mr RAUHIHI stated that he remembered he had taken some Codeine tablets for a sore back and admitted to being an occasional user of ‘P’.

Mr RAUHIHI has no previous charges under the NZTR rules.

[7] In response to a question from the committee, Mr Irving confirmed that Mr Rauhihi had provided an adequate sample when requested to do so, but that once the evidential testing had been undertaken for the methamphetamine and codeine, there was an insufficient amount of the urine sample remaining for a sample test for cannabis to be undertaken. He also confirmed that the RIU had only laid a charge relating to the methamphetamine positive result as the evidential presence of codeine had been consistent with Mr Rauhihi's explanation that he was on back pain medication; which the RIU had accepted.

[8] Mr Rauhihi confirmed that he agreed with the Summary of Facts, and when invited to comment, he indicated that the positive was a result of him going through a rough time and that his focus was now on caring for his children, including his three year old daughter. He advised the committee that he rode trackwork most mornings and that involvement within the racing industry was his full-time job as he had known no other employment since he became active within the industry from a very early age.

DECISION

[9] As the charge was admitted, the committee find the charge proved.

PENALTY SUBMISSIONS

[10] Mr Irving presented the following submissions to the hearing:

The respondent Stephen Toko RAUHIHI is a Miscellaneous Class B (Track-work Rider) Licence holder under the Rules of New Zealand Thoroughbred Racing (NZTR).

He is 33 years old and is a freelance track-work rider who is also employed as a stable-hand by trainer Suzy Gordon at Foxton.

He has been involved in the racing industry all his working life.

Mr RAUHIHI has admitted a breach of the Rules in relation to the positive drug test returned at the Foxton racecourse on the 04th November 2016.

On this occasion Mr RAUHIHI was track-work riding at the Foxton racecourse while the drug Methamphetamine was within his body. New Zealand Thoroughbred Racing commenced drug testing industry participants in 1995 and since then there has been growing awareness that there is an absolute obligation on riders to present themselves free from the influences of drugs.

All riders are aware of the policy and the consequences should they not comply.

The testing is conducted to maintain a safe and healthy workplace and to maintain the integrity of the industry.

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.

It is submitted that a 12 month suspension from track-riding (backdated to the 05th November when Mr RAUHIHI was ‘stood down’) and the cost of the ESR analysis of $187.50 should be imposed.

Offending

The details of Mr RAUHIHI’S offending are contained in the Racing Integrity Unit Summary of Facts which are agreed.

Penalty Provisions

The penalty provisions for this matter are contained under Rule 803(3):

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,

Sentencing Principles

The four principles of sentencing can be summarised briefly:

Penalties are designed to punish the offender for his / her wrong doing. They are not meant to be retributive in the sense 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 similar 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. All four principles apply in this matter.

Precedent

The most recent case involving a positive to the drug Methamphetamine is in the harness code RIU v THORBY (03.03.2017). Thorby, a stable foreman and amateur driver, tested positive on a race day and was suspended for 10 months and fined $2000.

The most relevant case involving a positive to Methamphetamine in the thoroughbred code is RIU v COUCHMAN (24.07.2015). Couchman, a track-rider tested positive when track-riding and was disqualified for 12 months.

The following are further decisions involving licence holders testing positive to Methamphetamine:

RIU v IHAKA (20.01.2016) – jumps jockey tested positive to Methamphetamine (second offence - the first in 2010; 16 months disqualification) while riding track-work, receiving a 20 month disqualification.

RIU v ISHERWOOD (30.10.2013) – jockey tested positive to Methamphetamine when riding track-work, receiving a 12 month disqualification.

RIU v BROWNLEE (29.06.2012) – public harness trainer and driver tested positive to Methamphetamine on a race day, receiving a 12 month suspension.

NZTR v WADDELL (24.06.2010) – jockey tested positive to Methamphetamine when riding track-work, receiving a 14 month disqualification.

In THORBY the Committee stated “We do not refer to these (thoroughbred) cases in any way as setting precedents for harness matters as the Rules, penalties and circumstances could and often are dissimilar to harness matters.”

It is submitted that the Rule in relation to human drug offending is the same in both codes – TR Rule 656(3) and HR Rule 512(1).

The provision for maximum penalties are lower for drug offending in harness racing, however the implications of drug abuse on the individual, other participants and on the image of racing impact equally within both codes and it is therefore submitted that they should command similar penalties, dependent only on individual circumstances.

Both harness racing positives occurred on a race day and all thoroughbred cases occurred during track-work, although three of the four riders were race-day jockeys, yet unusually greater penalty was given to the non-raceday offending.

In COUCHMAN the Committee stated “We have noted the Informants submission that this breach could be dealt with by way of 9 month disqualification/suspension. Consideration of suspension is not within our remit. Rule 803(2) (C) specifically refers to disqualification as a sentencing option and makes no reference to suspension.

It is submitted that Rule 803(2)(b)(iii)(C) is designed to relate specifically to a race day breach and that the appropriate penalty in this case is listed under Rule 803(3) which does provide for a suspension.

COUCHMAN however was unlicensed and therefore the Committee in this case could not suspend a licence he didn’t hold.

The most recent case involving a track-rider who refused to provide a urine sample when directed was RIU v T CAMPBELL (17.01.2015) and she received a nine month suspension.

This result is vastly disproportionate to the penalties imposed on thoroughbred positives for anything but Cannabis and provides no incentive for licence holders to comply with the drug testing procedure in the knowledge that they may test positive to a Class A or B Drug.

Aggravating Factors

Mr RAUHIHI’S drug screening test gave an indication for Amphetamine, Methamphetamine, Opiates and Cannabis.

After further ESR evidential tests identified Methamphetamine (Amphetamine) and Codeine (Opiates) there was insufficient sample remaining to test for Cannabis.

Mitigating Factors

Mr RAUHIHI has been fully co-operative with RIU staff throughout the investigation and prosecution process.

He has admitted the breach at the earliest possible stage.

He has had no previous charges before the Committee.

Following his positive test Mr RAUHIHI voluntarily enrolled himself in a nine week counselling programme with the MASH (Mental Health and Addiction Recovery Services) Trust in Palmerston North. He has two weeks remaining on the course.

Rehabilitation is one of the four sentencing principles and in the case of drug dependency or abuse, probably the most important. Mr RAUHIHI has submitted to and passed two drug tests since engaging in the programme.

Since his positive result almost five months ago Mr RAUHIHI has complied with his stand-down and has not ridden track-work.

Penalty

In the judgement of THORBY the Committee stated “In Brownlee the Committee saw no need to deprive the respondent of his industry related livelihood completely which related in suspension rather than disqualification being ordered. A similar factor exists in this case, as Mr Thorby works full-time as a stable foreman in racing stables owned by a licensed Public Trainer.”

Mr RAUHIHI also derives his livelihood solely from the industry as a stable-hand for a Licensed Trainer and as a track-rider.

An appropriate penalty should be his loss of income from track-riding, not his employment as a stable-hand.

In THORBY the respondent derived no income from race-day driving as an Amateur Driver so was therefore punished with a $2000 fine in addition to a 10 month suspension.

Mr RAUHIHI would normally ride 6-7 horses on any morning earning approximately $350 per week.

A 12 month suspension would therefore penalise him financially in the vicinity of $17,000.

He is not in a position to pay a fine as he is the sole provider for his young daughter and has four other children to support.

In THORBY the Committee also noted “Disqualification has the effect of removing the respondent from the activity he or she has been engaged in, to the extent that the person cannot enter upon a racecourse, stable or other training establishment; and clearly from engaging in whatever activity they have been engaged in.”

Mr RAUHIHI now lives with his father and his father’s partner Suzy Gordon at their training facility / stables which would make any disqualification both extremely difficult to enforce and almost untenable to manage domestically.

The delay between the offence date and the hearing date has been due to Mr RAUHIHI suffering a broken jaw and his priority being the management of his family situation and his rehabilitation.

Conclusion

The RIU therefore seek a 12 month suspension from track-riding (backdated to the 05th November when he was ‘stood down’) and costs of the ESR analysis of $187.50 to the RIU.

No further costs are sought by the RIU.

[11] Mr Irving also drew the committee's attention to the RIU v Thorby decision where the judicial committee said: "we do not consider this breach warrants Mr Thorby's disqualification. This would result in him being unable to be employed in his present position...or be employed in any manner in the industry. We do not believe this breach warrants a penalty that would impact upon Mr Thorby or his family to that extent."

[12] It was on this basis that Mr Irving submitted that a period of disqualification was inappropriate on this occasion.

[13] Mr Irving explained that Mr Rauhihi had made the decision to enrol in a rehabilitation programme on his own accord and that it was not in response to any suggestion(s) to do so from the RIU.

[14] When questioned as to why the maximum period of suspension was being sought when there were mitigating features, he identified that every other track rider who had breached this rule had received a period of disqualification. As the RIU were not seeking disqualification in this case, it was submitted that 12 months as an alternative was appropriate. Mr Irving did accept that the fact that Mr Rauhihi was making an effort to rehabilitate himself was something that could mitigate an approach to penalty.

[15] In response, Mr Rauhihi submitted that a 12 month period of suspension was a fair penalty as he had caused disrepute to his family and the racing industry as a result of his offending. He reiterated that he knew nothing other than racing and that a period of disqualification would be extremely difficult for him. He had four other children that he had to support, all under the age of 12 years, and a disqualification would effectively take away his ability to provide for his family.

[16] He confirmed that he had engaged in a rehabilitation programme after it became clear to him that he needed to address his behaviour. He had been going to regular sessions, and had provided the committee with evidence to support this.

[17] He apologised to his family who were appearing in support and also to Mr Irving and the committee as representatives of the racing industry.

[18] Ms Gordon spoke in support of the respondent, confirming that he was not in a good space at the time of his offending and that his inability to ride track work since November had an impact on his income, but also on her ability to train effectively as there were limited riders in Foxton. She believed that Mr Rauhihi was trying really hard to turn things around.

[19] Mr R Rauhihi also confirmed his support for his son. He asked the committee to note the fact that Mr S Rauhihi had taken steps to address things, and that he had taken those steps "all off his own back".

REASONS FOR PENALTY

[20] The committee considered all of the submissions placed before it. Mr Rauhihi had been stood down as a result of returning a positive test to methamphetamine on 4 November 2016. While the agreed Summary of Facts indicates that Mr Rauhihi had smoked cannabis in the two to three weeks prior, and this is consistent with the indicative result on the day, we are only considering a breach in relation to methamphetamine as it is the evidential analysis that we must give consideration to.

[21] Mr Rauhihi had a responsibility to ensure he presented himself to ride free from having drugs within his body. Failure to fulfil this obligation places himself, and other participants, at risk. It is clear that Mr Rauhihi now accepts and understands this.

[22] Mr Irving has helpfully identified previous cases in an attempt to consider precedent. The committee has been advised by the RIU that all previous breaches that relate to track work riders have been treated by way of disqualification. It is on this basis that Mr Irving has submitted a period of suspension at the maximum level of 12 months. Nonetheless, we are still required to, turn our mind to the possibility of a period of disqualification as an appropriate deterrent. When we do so, it seems to us that there are many factors that lead us to the conclusion that disqualification is a disproportionate penalty in this case.

[23] Mr Rauhihi currently resides with his children at his father and Ms Gordon's property. Disqualification would require him to move from that established environment, and prove logistically difficult to enforce.

[24] He has known no other employment or career opportunities except from within the racing industry. We accept the comment, made in RIU V Thorby where in reference to RIU v Brownlee, the committee stated that it "...saw no need to deprive the respondent of his industry related livelihood completely which related in suspension rather than disqualification being ordered". It is clear that disqualification would have a massive financial implication upon Mr Rauhihi’s ability to earn a living and provide for his family.

[25] We also note that while we have identified each of these factors, in isolation they may not necessarily lend themselves to dismissing disqualification as a penalty, but collectively, in the context of this case, they go in favour of suspension.

[26] In Mr Irving's well-considered Penalty Submissions, he identifies the four Principles of Sentencing. When we consider those, they confirm our conclusion that disqualification would be disproportionate to Mr Rauhihi's offending.

[27] After considering Mr Rauhihi's record under the rule, his early admission of the breach and his co-operation with the process we consider a 12 month period of suspension as appropriate.

[28] We believe it is appropriate for us to give further consideration to the fact that Mr Rauhihi has taken steps to address his offending of his own accord and has voluntarily engaged with a professional service provider to seek to rehabilitate himself. He has returned two negative drug tests since 5 November and has furnished evidence to support the fact that he has been engaging on a regular basis, an undertaking that Mr Irving has also confirmed.

[29] In this circumstance, we determine that a 11 month period of suspension is the appropriate end result.

PENALTY

[30] We formally reinstate Mr Rauhihi’s Trackwork (Miscellaneous Class B) Licence from the date that he was stood down. That Licence is now suspended from 5 November 2016 until 5 October 2017; a period of 11 months.

[31] In addition, he is also ordered to pay ESR analysis costs of $187.50 to the RIU.

[32] As this hearing was held on a scheduled Raceday, there will be no further order of costs in favour of the JCA.

Mr Tangi Utikere

Judicial Committee Chairman

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