Non Raceday Inquiry – Written Decision dated 22nd August 2022 – Trudy Thornton

Introduction

[1] This is the penalty decision arising from a charge lodged against Class A Jockey, Ms Trudy Thornton (the “Respondent”) by Racing Integrity Board  (RIB) Investigator, Ms Courtney Fox (the “Applicant”).

Particulars of the charge in respect of the Respondent:

THAT on Saturday the 16^th of July at Whangarei Racing Club, 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 Cannabis (THC), being a Class C Controlled Drug as defined in the Misuse of Drugs Act 1975 and that you are liable to the penalty imposed pursuant to Rule 803 of the Rules. (Information Number A18505 refers).

The Rule

[2] NZ Thoroughbred Rules (NZTR) of Racing (“the Rules”) relevant to this hearing are Rule 656(3), Rule 803(3) (Penalty provisions) and Rule 812.

Rule 656(3) provides that:

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, artefacts or isomers.

The Penalty Provisions

[3] Relevant penalty provisions include:

Subject to Rule 803(2)(b), where any 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 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 Licence holder 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] Furthermore, in addition to any penalty that may be imposed the Adjudicative Committee at their discretion may impose the provisions of Rule 812 (see discussion under heading ‘Decision’).

Decision ‘On the Papers’

[5] The Respondent signed the Information acknowledging service of the relevant documents, her admission of the breach and her request for her not to be present at the hearing, so that the hearing could be dealt with ‘on the papers’.

Rule 914 Provides that:

A defendant who does not appear at the hearing of the information may admit the breach of these Rules alleged in that information by giving written notice to the Adjudicative Committee that he does so and in such event the Adjudicative Committee shall have the same power to deal with him as if he had appeared before it and admitted that breach.

General Information

[6] Pursuant to Rule 903(2)(d) the RIB Chief Executive, Mr M Clement has authorised the filing of Information (Number A18505) alleging that Ms Thornton was in breach Rule 656 (3) on the said date.

[7] Full particulars of the charge are contained within Information and at (Paragraph 1). The Information was served on the Respondent on 9^th August 2022 and on this day Ms Thornton confirmed her admission of the breach and her request for the charge to be dealt with on the papers.

[8] The Respondent has admitted the charge.  It is therefore considered proved (Rule 915 (1)(d) applies).

Summary of Facts

The key salient points are as follows:

[9] The Respondent, Trudy Thornton, is the holder of a Class A (Rider) Licence issued by New Zealand Thoroughbred Racing (NZTR). She is 59 years old and is currently employed as a Jockey.

[10] On Saturday the 16^th of July 2022, Investigators from the Racing Integrity Board (RIB) conducted routine drug testing at the ITM/GIB Northern Region Winter Championships meeting, held at the Whangarei Racing Club in Ruakaka.

[11] The Respondent was observed in the Jockey’s area of the racing club and was scheduled to ride in races 5 and 6.

[12] The Respondent was one of eleven people selected for testing who were performing a ‘safety sensitive activity’ that day.

[13] The Respondent acknowledged that she understood and accepted the Notice.

[14] All appropriate paperwork was completed with the Respondent consenting for the sample to be packaged and sent to Environmental Science and Research Limited (ESR) for analysis.

[15] On Monday the 8^th of August 2022, ESR provided a Certificate of Analysis and confirmed that the urine sample provided by the Respondent was positive to Cannabis at a THC level of 110 ng/mL.

[16] Cannabis is a Class C Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[17] On Monday the 8^th of August 2022 the Respondent was advised of the positive result and advised that she would be issued a stand down notice as a result.

[18] When spoken to, the Respondent stated that on the Sunday prior to the race meeting she had consumed tea and biscuits whilst at a friend’s address. She advised that she was not made aware that the biscuits contained Cannabis until after she had consumed several bites.

[19] The Respondent has no current charges.

Submissions as to Penalty – Applicant

In written penalty submissions on behalf of the RIB, Ms Fox submitted that:

[20] The Respondent has admitted the breach, the details of which are contained in the Summary of Facts.

[21] Ms Thornton was riding at the ITM/GIB Northern Region Winter Championships meeting, held at the Ruakaka Racing Club whilst the drug THC (Cannabis – level 110ng/mL) was within her body.

[22] The ESR reported level of THC (110ng/mL) is unhelpful in determining the use of Cannabis by Ms Thornton but is consistent with her explanation. The minimum level tested is 15ng/mL and a high level considered to be over 1000ng/mL.

 Sentencing Principles

[23] The four principles of sentencing can be summarised briefly:

• Penalties are designed to punish the offender for 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 RIB for the type of behaviour in question.
• The need to rehabilitate the offender should be taken into account.

[24] The RIB submits that all four principles apply in this matter.

Precedent

[25]  Recent penalties for track riders and jockeys positive to the Class C drug Cannabis are as follows;

• RIB v R AUKETT (14.06.2022) – Track work rider – Level >230 ng/mL; six-weeks suspension and costs of $187.50.
• RIB v B HERD (06.05.2022) – Track work rider – Level 130ng/mL; seven-weeks suspension and cost of $187.50. Previous drug related history.
• RIB v A SCOTT (04.03.2022) – Track work rider – Level 500ng/mL; nine-weeks suspension and costs of $187.50. Several aggravating features present in this case.
• RIU v J ARBERY (09.11.2019) – Track work rider – Level >300ng/mL; six-week suspension and costs of $187.50.
• RIU v JL ROBINSON (27.06.18) – Apprentice jockey – Level >300ng/mL; six-week suspension and costs of $187.50.

Aggravating Factors

[26] Ms Thornton understands the use of Cannabis is prohibited under the Rules

Mitigating Factors

[27] Ms Thornton entered an early guilty plea and accepted full responsibility for her actions.

[28] She has been compliant, cooperative, and respectful with all RIB staff throughout the process.

Conclusion

[29] The RIB seeks a six-week suspension of Ms Thornton’s Class A Licence (backdated to 09.08.2022 when she was ‘stood down’) and the costs of the ESR analysis of $187.50 (to the RIB).

Submissions as to Penalty – Respondent

[30] Ms Thornton took the opportunity to present a comprehensive summary of the events that led to her ingesting Cannabis. The Committee see no reason to transcript these into this decision, other than to confirm that as a result of this charge Ms Thornton has suffered embarrassment and will suffer a financial burden should she be suspended for a prolonged period of time.

Decision

[31] The Adjudicative Committee has decided that a 6-week suspension, with there being 1-week stayed subject to a negative test (provided by an approved Drug testing facility) prior to the end of the 6 week period is an appropriate penalty.  If those conditions are met the Respondent will serve out a 5-week suspension.

Reasons

[32] In consideration of penalty the Adjudicative Committee has had due regard for the following factors:

• The circumstances of this breach.
• The submissions lodged by the Applicant and Respondent including mitigating and aggravating factors.
• The Respondent’s level of culpability and personal circumstances.
• The Respondent’s frank admission and cooperation with the investigation.

[33] The Respondent has made a valuable contribution to the Racing Industry over a prolonged period of time. During this time the Respondent has been tested on no less than 5 occasions and has not previously breached this particular Rule. There should be a concession in penalty for these factors along with the aforementioned mitigating factors.

Penalty and Costs:

[34] The Respondent, Ms Thornton’s A-class jockey Licence is suspended for 5 weeks, commencing on the 9^th of August and concluding on the 13^th of September, subject to the supply of a negative test to THC/Cannabis. Should Ms Thornton choose not to, or is unable to provide a negative test prior to the 13^th of September, then her suspension will conclude on the 20^th of September.

Costs

[35] Costs of $187.50, being the cost of the sample analysis, are awarded in favour of the Applicant.

[36] Although this matter was dealt with ‘on the papers’ and although some costs have been incurred by the RIB (Adjudication Committee) on this occasion they are waived.