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Non Raceday Inquiry - NZTR v AQ Ihaka - Decision 18 August 2010

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NZTR v ANTONIA IHAKA

 

Hearing before Non-Raceday Judicial Committee

 

 

 

Judicial Committee:

 

Mr Bruce Squire QC (Chairman)

Mr Richard Seabrook

 

Present:

 

Mr Bryan McKenzie, Racecourse Inspector

Mr Antonia Ihaka, Licensed Jockey

Mr Larry Reid, Friend of Mr Ihaka

Mr Shaun Clotworthy, Trainer

Mr John Oatham, Registrar

 

Date of Hearing:

 

16 August 2010

 

Venue:

 

Te Rapa Racecourse; Hamilton

 

 

DECISION OF JUDICIAL COMMITTEE

 

1.                  Introduction:

 

1.1.            This hearing of the Judicial Committee was convened to consider and determine a charge of a breach of Rule 656 (3) of the Rules of Racing brought against Mr Ihaka.  The charge laid against Mr Ihaka was:

 

"That on Friday the 30th July 2010 at the Matamata Racecourse, being a rider who having been required by an Investigator to supply a sample of his urine which was found, upon analysis, to contain the controlled drug methamphetamine and amphetamine as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 656 (3) of the Rules of Racing AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to the provisions of Rule 803 of the said Rules"

 

1.2.            Mr Ihaka was represented at the hearing by Mr Reid who told the Committee he appeared for Mr Ihaka in his capacity as a friend.  The Committee permitted Mr Reid to appear for Mr Ihaka on that basis.  Mr Clotworthy who is a licensed Trainer and Mr Ihaka's current employer also appeared to support Mr Ihaka and to provide information to the Committee relevant to the issue of penalty.

 

1.3.            At the commencement of the hearing Mr Ihaka, through Mr Reid admitted the charge. The Committee was then provided with a Summary of Facts by Mr McKenzie outlining the circumstances from which the charge arose.  Mr McKenzie explained that on Friday 30 July 2010, Mr Ihaka was one of a number of riders selected for drug testing at a race meeting conducted by Racing Matamata.  On that day Mr Ihaka had ridden in the first race at the meeting.  Following the completion of the race a urine sample was taken from Mr Ihaka which was subsequently analysed by the ESR in Wellington.  The analysis established the presence of the drugs methamphetamine and amphetamine in Mr Ihaka's urine sample.  Both methamphetamine and amphetamine are controlled drugs within the Misuse of Drugs Act 1975.

 

1.4.            On 4 August 2010 Mr McKenzie and a colleague spoke to Mr Ihaka and advised him the urine sample he had provided had tested positive to the two controlled drugs referred to.  He was given a copy of the report provided by the ESR and served with a Licence Withdrawal Notice.   In discussions which followed with Mr McKenzie and his colleague Mr Ihaka admitted that on the Tuesday prior to the race meeting he had attended a party in West Auckland during which he smoked what he described in a written statement he later provided as "P".  He told Mr McKenzie he was not in the habit of smoking the drug and that he had "slipped up" in a weak moment.  He said the "P" was not his and he had not purchased it.  He told Mr McKenzie he did not have any addiction problems with "P" or any other drugs.

 

1.5.            On the issue of penalty Mr McKenzie emphasised the well known pernicious qualities of methamphetamine and the dangers arising from its use by those in racing, particularly jockeys.  He drew attention to the obvious risks of jockeys riding whilst under the influence of such drugs.

 

1.6.            He advised the Committee Mr Ihaka had previously been disqualified in 2006 for three months after testing positive to the Class C controlled drug Cannabis and he had two other prior appearances before a Judicial Committee for misconduct which he conceded were not relevant for present purposes.  By reference to a recent case in which another rider had been suspended for a period of 14 months by a Judicial Committee for an offence involving the drug methamphetamine, Mr McKenzie submitted that in this case the starting point the Committee should adopt in assessing penalty was two years disqualification. He said that should be discounted for mitigating factors including Mr Ihaka's guilty plea and generally co-operative attitude down to disqualification for a period of no less than 18 months.  In addition, he sought costs for the NZTR and the Judicial Control Authority.

 

 

2.         Submissions from Mr Ihaka

 

 

2.1       Mr Reid provided the Committee with written submissions which he had helpfully prepared.  In those submissions and oral expansion of them before the Committee, he sought to have the Committee suspend Mr Ihaka for a period of 12 months, conditional upon Mr Ihaka providing undertakings to enter into a recognised drug rehabilitation programme and to participate in random drug testing during the period of suspension.  Both Mr Reid and Mr Clotworthy who spoke to the Committee in support of Mr Ihaka urged the Committee, in assessing penalty, to recognise the importance of rehabilitation of Mr Ihaka and to fix a penalty for his offending which promoted that rehabilitation.  Mr Clotworthy said that were the Committee to accede to the submissions made on behalf of Mr Ihaka, he would provide him with a residence and work during the period of his suspension and generally assist him with his rehabilitation.  In speaking of Mr Ihaka's ability as a rider and horseman, Mr Clotworthy made the point the industry needs people like him and suspension as opposed to a more severe sanction would be a penalty which properly recognised the desirability of keeping people such as Mr Ihaka within the racing industry.  The Committee was told Mr Ihaka's financial position was at best marginal.

 

3.         Discussion:

 

3.1       The prevalence of drug taking in the racing industry has long been a matter of concern to the JCA.  That concern was recently expressed again in the case of NZTR v W (24.6.2010).  The use of the drug methamphetamine is of particular concern.  The dangerous nature of the drug and its effect on persons who elect to use it are well documented and need no repetition here.  On any view of it, the use of the drug by riders who may be affected by it when riding is quite unacceptable and must be met by penalties which will deter others from similar conduct.

 

3.2       For that reason, despite the submissions made on Mr Ihaka's behalf and the mitigating factors that could properly be brought to account, the Committee decided the only proper penalty for an offence of this kind was one of disqualification.  Acceptance of the submission that a suspension with appropriate undertakings as to rehabilitative measures was an appropriate penalty in this case, would have been to ignore clear sentencing patterns for drug use established in a range of prior cases and the need to impose penalties which will be seen as a clear deterrent to the use of controlled drugs within the racing industry.  Also important in that context is the basic sentencing principle that offending of broadly comparable culpability should attract broadly similar penalties.

 

3.3       Approaching the assessment of penalty in that way the Committee took account of the penalty imposed in the case of NZTR v W (24.6.2010), the most recent case under the new penalty regime introduced in October 2009 involving the same charge and the same controlled drug as in this case.  In W the Judicial Committee imposed a period of disqualification of 14 months and ordered costs to be paid to the NZTR and JCA, of $650. 00 and $450.00 respectively.  In that case W had previous appearances before Judicial Committees but no prior drug offending, unlike Mr Ihaka, who was disqualified for 4 months in 2006 for having tested positive to the Class C controlled drug Cannabis.

 

3.4       Although Mr McKenzie submitted the proper starting point for assessment of penalty in Mr Ihaka's case should be 2 years disqualification, the Committee thought that to be out of line with W and considered a starting point of 18 months was appropriate in this case.  Recognising he was entitled to credit for his guilty plea and the other mitigating factors Mr Reid submitted the Committee could properly take account of, the Committee accepted the 18 month starting point could properly be discounted but in assessing the extent of the discount weighed in the balance against the mitigating factors referred to, the fact of his previous conviction in 2006.  In the result, the Committee considered a period of disqualification for 16 months should be imposed and Mr Ihaka was accordingly disqualified for 16 months as from the date of service of the Licence Withdrawal Notice, namely 4 August 2010.  In addition, Mr Ihaka was ordered to pay costs to the NZTR of $250. 00 and to the JCA in the sum of $500. 00.

 

3.5       The Committee records its appreciation to Mr McKenzie and Mr Reid for their helpful submissions.

 

 

 

 

DATED at Wellington this 18th day of August 2010

 

 

 

 

 

 

                                                                        ___________________________

                                                                                    Bruce Squire QC

                                                                                         Chairman

 

 

 

 

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