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Non Raceday Inquiry RIU v ZJ Meredith - Decision dated 10 May 2021 - Chair, Mr G Jones

Created on 11 May 2021

BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND
IN THE MATTER
of Harness New Zealand Rules of Racing (Information Number A8492)
BETWEEN Mr Oscar Westerlund of the Racing Integrity Unit (RIU)
Informant
AND

Zev James Meredith (Junior Driver)
Respondent
JUDICIAL COMMITTEE: Mr GR Jones (Chair) and Mr A Smith (Committee Member)
VENUE: Alexandra Park, Auckland
PRESENT: Mr Westerlund, Mr Meredith, Mr D Balle (Licensed Trainer and Support Person)
DATE OF HEARING: 7 May 2021
DATE OF ORAL DECISION: 7 May 2021
DATE OF WRITTEN PENALTY DECISION: 10 May 2021

DECISION OF JUDICIAL COMMITTEE

The Charge:

1) This is the penalty decision arising from a charge lodged against Licensed Junior Driver, Mr Z Meredith (the “Respondent”) by Racing Integrity Unit (RIU) Investigator, Mr O Westerlund (the “Informant”)

Particulars of the charge are that:

On Wednesday the 29th of March 2021, at the Franklin Park Training Centre, Pukekohe, having been required by an Investigator to supply a sample of urine in accordance with Rule 512(1) of the New Zealand Rules of Harness Racing, had urine which was found, upon analysis, to contain the controlled drug THC acid (Cannabis) as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule AND IS therefore liable to the penalty or penalties which may be imposed pursuant to Rule 1003(1) of the said Rules.

2) Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relevant to this hearing are Rule 512(1) and Rule 1003 (Penalty provisions)

Rule 512 (1) provides:
Every Driver commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply 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, artefacts, or isomers.

Rule 1003 provides:
(1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(12), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) a fine not exceeding $10,000; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months.

General Information

3) Pursuant to Rule 1108(2) the RIU General Manager, Mr Godber authorised the filing of Information (Number A8492) alleging that Mr Meredith was in breach Rule 512(1) on the said date.

4) Full particulars of the charge are contained within Information and at (Paragraph 1). The Information was served on the Respondent on 20 April 2021.

5) The Respondent has noted on the Information “I do admit the breach of the rule” and at the commencement of the hearing he confirmed his admission.

6) A consequence of his admission is that the charge is deemed proved (Rule 1003 applies).

Disclosure

7) The Respondent has acknowledged he had seen all the relevant (disclosure) documents and that he accepts the Summary of Facts. The proposed procedure for the conduct of the hearing was explained to and accepted by both the Informant and the Respondent.

8) Relevant documents include:
 Signed Information No A8492
 Service of Information dated 20 April 2021
 Charge Rule and Penalty Provisions
 RIU letter of authorisation to lodge charge dated 14 April 2021
 RIU Summary of Facts
 ESR/IANZ letter dated 7 April 2021
 RIU letter advising suspension of license dated 8 April 2021
 Letters from D Young (SA) dated 19 April and 5 May 2021
 RIU Penalty Submissions
 Email communication from Mr D Balle dated 5 May 2021

Summary of Facts / Evidence

Mr Westerlund presented an agreed Summary of Facts. The key salient points are as follows:

9) On the morning of Wednesday, 29 March 2021, Officials from the RIU conducted routine drug testing of Drivers at the Franklin Park Training Centre in Pukekohe. The training centre is used by 25 Licenced Harness Trainers to work their horses.

10) The testing was conducted in the specialist workplace drug testing van by The Drug Detection Agency (TDDA).

11) The Respondent Mr Meredith was one of ten Drivers randomly selected for testing and was served the appropriate notice at 9.00 am by an Investigator.

12) The Respondent presented himself at 10.00 am and provided the required urine sample at 10.17am. The sample was given unique number U368487 and forwarded to the ESR the following day by a Drug Detection Agency authorised agent of the RIU.

13) The Respondent voluntarily stood himself down from any further driving on 29 March 2021 until the results of the ESR analysis were confirmed and pending the service of Stand Down Notice.

14) On Wednesday 7 April 2021, the RIU was advised, in writing, that the sample provided by the Respondent on analysis was positive for the controlled drug THC acid (Cannabis) with a level of 110ng/mL.

15) On Thursday 8 April 2021, a Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 514(2)(a) and (b) were served on The Respondent.

16) When spoken to, the Respondent stated that he had smoked Cannabis about four days prior to undertaking the test. He stated that he has been smoking Cannabis since he was 15 years old. That he would smoke Cannabis 3-4 times a week and that he regrets ever smoking it.

17) The Respondent is a Licensed Junior Driver and Stablehand based in Pukekohe and is employed on a full-time basis by a Licenced Trainer.

18) He has no previous history of Rule breaches for drug related offending.

Submissions by The Respondent

In response to the Summary of Facts Mr Meredith submitted:
19) That he agreed with the facts as outlined in the Summary.

20) That he is “deeply sorry and made a big mistake”. He added that he wished to apologise to HRNZ and all his supporters, who he said he has let down because of the breach.

Submissions as to Penalty (RIU)

In his written penalty submissions Mr Westerlund submitted that:

21) The Respondent is a Licensed Junior Driver under the New Zealand Rules of Harness Racing. He is 18 years old and has been involved in the Racing Industry for 3 years and 6 months.

22) The Respondent has admitted the breach, the circumstances of which are contained within the agreed Summary of Facts.

23) All Harness Drivers are aware the testing is conducted for two reasons; first, the need to maintain a healthy and safe workplace and second to maintain the integrity of the industry.

24) Historical penalties for breaches of the Industry drug laws show some divergence. The type of drug, the situation, and the amount of the drug in the system add to this divergence.

25) On this occasion the Respondent presented himself at the Franklin Park Training Centre, Pukekohe to drive trackwork while the drug THC (Cannabis) was within his body. THC (Cannabis) is a Class C controlled drug within the meaning of the Misuse of Drugs Act 1975.

26) The four principles of sentencing that the RIU submit to be of relevance can be summarised briefly:
 Penalties are designed to punish the offender for his/her wrongdoing. 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 offending in question.
 The need to rehabilitate the offender should be considered.

27) In terms of previous penalties for similar breaches of the Rule, the following decisions are submitted for the consideration of the Committee.
RIU v Askew (31.08.2017) –In this case a licensed track rider tested positive to Cannabis (300ng/mL). He received a six-week suspension and costs of $187.50.
RIU v Collins (19.06.17) –In this case a licensed trackwork rider tested positive to Cannabis (78 ng/mL). He received a 6-week suspension and costs of $187.50.
RIU v Heemi (24.11.16) -In this case a licensed trackwork rider tested positive to Cannabis. He received a 6-week suspension and costs of $187.50.
RIU v Robinson (24.11.16) -In this case a licensed trackwork rider tested positive to Cannabis (270 ng/mL). He received a 6-week suspension and costs of $187.50.
RIU v Borrows (14.12.15) In this case a track work rider tested positive to Cannabis (110 ng/mL). She received 8 weeks suspension and costs of $187.50.

28) At the time of the testing the Respondent was working the horses at the training track.

Mitigating factors

29) That the Respondent has admitted the breach at the first opportunity.

30) That he has been fully co-operative throughout the investigative process.

31) That he voluntarily stood himself down.

32) That he voluntarily enrolled in the Salvation Army (Drug and Alcohol) counselling programme.

33) That he has had no previous charges or breaches of this nature.

Aggravating factors

34) That Mr Meredith should understand the use of Cannabis is prohibited under the Rules and he had admitted using Cannabis prior to being tested.
Consideration for rehabilitation

35) That it should be noted that in past cases the Sentencing Principles have generally focussed around the first three principles and ignored Principle four which refers to rehabilitating the offender.

36) That the RIU would ask the Committee to give due consideration to the initiative shown by the Respondent’s willingness to rehabilitate himself and to place some weight on that when considering penalty.

37) That the RIU would not oppose either a reduced penalty provided the Respondent completes The Salvation Army counselling program or suspending a portion of the penalty on the condition that the Respondent provides satisfactory confirmation of the successful completion of the Counselling program to the JCA or Committee.

Completion of the Salvation Army Programme

38) Mr Westerlund added that he has since been in touch with Diana Young, the AOD Clinician to the Racing Industry who has provided some additional information concerning the Respondent’s attendance at the ‘programme’ - this is contained in a written memorandum dated 5 May 2021 a copy of which has been provided to the Committee. The information is summarised as follows:
 That the Respondent has completed an approved Treatment Plan which has consisted of Alcohol and Drug education and counselling.
 That the Respondent was open and honest and has an appreciation of his situation.
 That he is committed to remain abstinent from Cannabis use moving forward.
 That ongoing support and counselling is available.

Conclusion
39) The RIU seek a penalty consisting of a six-week suspension and a discount based on his participation in the (Salvation Army Alcohol and Drug) Programme.

40) The cost of ESR analysis in the amount of $150 to the RIU is sought.

Submissions as to Penalty (Respondent)

In relation to penalty Mr Meredith submitted:

41) That he has held Junior Driver’s License since November 2019 and has driven 10 race winners.

42) That he loves the (Harness) Industry and is now focussed on work rather than thinking about his addiction.

43) That he has not used Cannabis since the day he was tested and is willing to take a further test to demonstrate his non-use.

44) That he voluntarily stood himself down from driving 10 days prior to the result of his test being confirmed and prior to the Stand Down Notice being served on him.

45) That he is willing to continue with ongoing counselling.
Mr Balle – Support Person and Employer

46) In support of the Respondent his employer, Licensed Trainer Mr D Balle filed the following written submission:
“In regard to penalty submissions for Mr Zev Meredith and his hearing on 7 May 2021, I would like to state for the JCA’s attention that while we have continued Mr Meredith’s employment since his positive test and subsequent stand down on 29 March 2021, there will be not continued employment opportunities at our Stables if he is not able to drive on the Franklin Park training track.
He is specifically employed to drive horses in trackwork, and we have other staff that fulfil the role he is currently undertaking as a result of his licence suspension.
While we have supported him during his stand down period of six weeks, any further extension of this stand down period will make it highly unlikely that we will be able to continue his employment”.

47) Mr Balle was present at the hearing and he confirmed that it would be impractical, and it would not be economical for him to continue employing Mr Meredith, beyond the current 6-week stand-down if he were not able to immediately fulfil his trackwork driving duties. This being the very reason for which he is employed.

48) Mr Balle advised the Committee that the Respondent is a promising and gifted young driver who is a good worker. He added that he will need ongoing support.

49) Mr Balle concluded his submission by highlighting the fact that there are only 9 Junior Drivers in the North Island and the ‘Industry’ needs to support and look after the Junior Drivers.

Reasons for Penalty

50) The Committee has considered the facts and submissions lodged by the Informant and the Respondent.

51) We have had due regard for the supporting information provided by Ms Young and Mr Balle.

52) We have also had regard for the Respondent’s level of culpability and his personal circumstances including his age (18 years) potential for rehabilitation.

53) The Informant has submitted historical penalties for similar breaches. We have noted that these all relate to Thoroughbred Trackwork Riders. All the cases referred to have resulted in a 6-week suspension. For balance, the Committee also highlights historical cases relating to Harness Horseman similarly charged; namely:
RIU v G.J. Thomas (17.07.14). Open Horseman tested positive to THC Acid (220 ng/ml). Good character, no previous drug rule breaches, just over 5 months suspension. No fine.
RIU v N Bishop (1.08.12). Junior Horsewoman tested positive to THC Acid (more than 300 ng/ml). 6 months suspension. No fine.
RIU v I Brownlee (29.06.12). Public Trainer and Open Horseman tested positive to Methamphetamine, Amphetamine and THC Acid. Suspended for 12 months plus costs.

54) There is clearly a variation between the penalties that have historically been imposed on Harness Drivers compared to the (Thoroughbred) Trackwork Riders. Yet there is not a significant difference in terms of the respective available penalties prescribed in each of the Codes’ Rules. We understand the discrepancy, perhaps, is that the Harness examples arose from raceday testing of drivers, whereas the Thoroughbred examples relate to non-raceday testing of trackwork riders. Therefore, we accept there is some similarity between the Thoroughbred examples and the Respondent’s situation because he was tested at a training track venue as opposed to a raceday.

55) An aggravating factor is that, by his own admission, the Respondent has been a frequent Cannabis user 3 to 4 times per week for the past 3 years. During that time, he has worked in various stables and driven on racedays and could have been affected by Cannabis use, thus placing others are risk.

56) The Informant submitted two mitigating factors for the Committee to consider, namely that the Respondent:

a. Admitted the breach at the earliest opportunity.
b. Voluntarily stood himself down from driving.

57) In addition to these mitigating factors, we place some considerable weight on the fact that the Respondent on his own volition has now successfully completed the Salvation Army Counselling Programme, and by all accounts has responded positively – as evidenced by the Memorandum referred to at paragraph 38.

58) A further factor that we must consider is that by voluntarily standing himself down from driving prior to the Official Stand Down Notice being served on him, the Respondent has already completed more than 5 weeks on the side-line. And during this time, he has been unable to derive any income from drives at racedays or trials.

59) In our deliberations the Committee concluded that this is a case where a rehabilitative (and therapeutic) approach would best serve the interests of all involved. An overly long punitive suspension, in our view is not required on this occasion. Further, it would be unduly harsh on the Respondent if a suspension resulted in Mr Balle being unable to continue supporting the Respondent in his employment.

60) It is in the Respondent’s best interests to keep working under the watchful eye of a supportive employer such as Mr Balle.

61) The Respondent is an 18-year-old Junior Driver who we are told shows considerable promise as a Driver. His potential is evidenced by the fact that he has already driven 10 raceday winners. On that basis he is deserving of a chance to prove that he can remain abstinent from Cannabis use, and in this regard the ball is firmly in his court.

Penalty and Costs:

1) Having carefully considered all the material that has been placed before us we impose the following penalties and make the following orders:
2) Mr Meredith is suspended from holding a Junior Driver’s Licence for a period of 4 weeks. We have taken into account time already spent on stand down and therefore this suspension is backdated to commence on 7 April 2021 (being the date the Stand Down Notice was served) and concludes on 6 May 2021 (4 weeks).
3) In addition, we require Mr Meredith to provide evidence to the RIU of a clear drug test by 21 May 2021 (within 2 weeks).
4) Costs of $150, being the cost of the sample analysis, are awarded in favour of the Informant.
5) Although this matter was heard on a raceday it was conducted as a non-race hearing, and some JCA costs have been incurred. However, on this occasion the JCA have not sought costs.


GR Jones (Chair)

 

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