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Non Raceday Decision - GG Robb hrd 03 Apr 09



313.6
1003.1

 HRNZ v Mr GG Robb: CHARGE:  On the 20th day of March 2009, having been required in writing by Thomas Rodney CARMICHAEL, a duly appointed Racecourse Inspector, to provide a Sample in accordance with Rules 226(2) (d) and Rule 313 (6) of the Rules of Harness Racing, Mr Robb failed to report to the designated testing station for the collection of such sample and is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 1003 (1) of the said Rules.

 



BEFORE A JUDICIAL COMMITTEE
AT AUCKLAND

 IN THE MATTER OF: The New Zealand Rules of Harness
  Racing (HRNZ)
  _______________________________

 BETWEEN: Thomas Rodney CARMICHAEL
  Informant

 AND:  Gary Gene ROBB
   Defendant

 CHARGE:  On the 20th day of March 2009, having been required in writing by Thomas Rodney CARMICHAEL, a duly appointed Racecourse Inspector, to provide a Sample in accordance with Rules 226(2) (d) and Rule 313 (6) of the Rules of Harness Racing, failed to report to the designated testing station for the collection of such sample and is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 1003 (1) of the said Rules.

 APPEARING: Mr T.R. CARMICHAEL for HRNZ
  Mr G.G. Robb
  Mr R. Lawson – Lay Advocate
  Ms A. Cumberland – Registrar

 DATE OF HEARING: 3rd April 2009

 JUDICIAL COMMITTEE: B.J. ROWE (Chairman)
A. Dooley

 DATE OF DECISION: 3rd April 2009


DECISION OF THE JUDICIAL COMMITTEE

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The defendant is a public trainer and open horseman licensed under the N.Z. Rules of Harness Racing.  He is charged with a breach of Rule 313(6) as outlined above.  Mr Lawson confirmed earlier advice that Mr Robb pleads guilty to the charge.  Mr Carmichael produced a letter from the General Manager, HRNZ, authorising the filing of the information, a summary of facts, and other relevant documentation. 

The facts can be summarised as follows.  On Friday 20th March 2009 during the Auckland Trotting Club meeting at Alexandra Park the defendant was directed in writing by Chief Racecourse Inspector Mr Carmichael to present himself for a routine drug test that evening.  Mr Carmichael spoke to the defendant later during the evening.  The defendant said he had not complied with the directive but would do so after his drive in Race 8.  The defendant did not report to the drug testing room as promised and could not be located on course.  Mr Carmichael tried to contact the defendant on his mobile phone but was unsuccessful.  The defendant left a message on Mr Carmichael’s telephone on Saturday 21st March 2009 advising he had become ill after Race 8 and left the racecourse.

Mr Carmichael interviewed the defendant on Sunday 22nd March 2009.  The defendant again said he had become ill and had to get a lift home with friends and had not intentionally avoided the drug test.  On Monday 23rd March 2009 the defendant supplied a sample at Pukekohe which when tested was found to be drug free. 

Mr Lawson presented written submissions as to the circumstances. The facts as outlined by Mr Carmichael are accepted.  The defendant reiterated that he had become unwell but acknowledged he should have seen Mr Carmichael and/or taken the test before leaving the course.  The defendant expressed his remorse but pointed to his subsequent co-operation with Mr Carmichael.

Penalty Submissions:

Mr Carmichael in written submission referred to the policy of HRNZ to ensure that racing is drug free – both horses and horsemen.  He said rules and protocols had been put in place to allow for the drug testing of horsemen, and it was a serious matter for a horseman to fail to present for drug testing or to fail a drug test.  He said the defendant had ample opportunity to provide a sample.  He said he had been instructed by HRNZ to seek suspension of the defendant’s horseman’s licence for a minimum period of three months.  He said there were no precedent cases in Harness Racing.  He referred the Committee to two Thoroughbred Racing cases relating to the equivalent rule, one resulting in two months disqualification and the other four months disqualification.  He also sought costs of $112.50 being the costs involved in relation to the sample supplied by the defendant at Pukekohe. 

Mr Lawson in written submissions said the appropriate penalty was that set out in the JCA guidelines – a fine of $750.00 and one month’s suspension of the horseman’s licence.  He said there were no aggravating factors, the defendant was remorseful, was a married man with two young children and derived his entire income from the industry – most of it from driving fees.  He said the defendant was well respected in the industry and had a very good driving record.  He said there were many examples of Harness Racing penalties being less than equivalent thoroughbred penalties.  He said the penalties set out in the JCA guidelines were decided upon after consultation by the JCA with HRNZ and the Horseman’s Association.

Penalty Decision:

In fixing penalty the Committee takes into account the following matters: 

1. Rule 1003 (1) provides the following penalties:
(a) A fine not exceeding $5,000.00 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.

2. The guilty plea.
3. The submissions of Mr Carmichael in particular the need to ensure Harness Racing is ‘drug free’ in order to maintain the integrity of the industry.  There is also the issue of safety of horsemen and horses.
4. The submissions of Mr Lawson.
5. The recommended starting point penalty set out in the JCA guidelines as referred to by Mr Lawson – this penalty is approximately equivalent to a two month suspension.
6. There are no precedent cases in Harness Racing.
7. The Thoroughbred Racing cases referred to are not helpful in that the JCA guidelines recognise that there are penalty differences between the two codes and the differences are appropriate.
8. In recommending a suspension rather than disqualification Mr Carmichael acknowledged the ‘code differences’ in relation to penalty.

Taking all of those matters into consideration, the Committee can find no reason to deviate from the recommended starting point in the JCA guidelines.  That starting point was decided upon after consultation with HRNZ and the concerns of HRNZ regarding the importance of the industry being ‘drug free’ would have been taken into account.  Accordingly the defendant is fined the sum of $750.00 and his horseman’s licence is suspended for a period of one month commencing at the end of racing on the 3rd April 2009 and concluding at the end of racing on the 3rd May 2009.  Further, costs of $112.50 are awarded to HRNZ.  There are no JCA costs.

 


B.J. Rowe
CHAIR

 

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