Non Raceday Inquiry – Decision dated 1 September 2022 – Chris Rauhihi

1. Mr Rauhihi faces two charges, these are as follows:
a. A15817
On 23 March 2022 at Levin Racecourse, having been required by a Racing Investigator to supply a sample of urine in accordance with the New Zealand Thoroughbred Racing Rules of Racing (the Rules), Mr Rauhihi committed a dishonest act connected with racing, in that it is alleged he provided a foreign sample of liquid to the authorised testing official in an attempt to pass this off as his own urine sample.

b. A15818
On 23 March 2022 at Levin Racecourse, having been required by a Racing Investigator to supply his urine in accordance with Rule 656(3) of the Rules, Mr Rauhihi 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 subject to the penalty imposed pursuant to Rule 803.

2. An initial telephone conference was convened on 13 April 2022. Mr Rauhihi did not attend, and directions were given for a hearing to take place on Tuesday 10 May 2022.

3. Mr Rauhihi subsequently contacted the Racing Integrity Board and advised that, due to his children having contracted Covid-19 he was unable to attend the hearing. The hearing was vacated and set down to reconvene on Tuesday 14 June 2022.

4. On the evening of Monday 13 June at 7:53pm Mr Rauhihi advised he was unable to attend the hearing as it conflicted with work commitments in a new role, and intimated he was confused as a result of a new appointment notice issued by the Racing Integrity Board in relation to the adjudication. The Adjudicative Committee granted a final adjournment for the matter to reconvene on Wednesday 17 August 2022. On 12 August 2022 Mr Rauhihi advised the Racing Integrity Board that he would not be attending the hearing set down for Wednesday 17 August. Mr Rauhihi was asked whether he would be providing any penalty submissions, and if he wished to do so in writing, Mr Rauhihi confirmed he would provide written submissions as to penalty.

5. At the hearing date of 17 August 2022, no further written submissions or correspondence from Mr Rauhihi were received.

6. The Adjudicative Committee has considered the position and notes multiple adjournments have been afforded to Mr Rauhihi in the matter. In addition, Mr Rauhihi has also been provided an opportunity to provide any submissions as to penalty ahead of the proposed hearing date and has failed to do so.

7. In the most recent adjournment, Mr Rauhihi was warned that, absent highly compelling circumstances, no further adjournment would be afforded. The Adjudicative Committee deferred progressing the decision a further week, in the event anything from Mr Rauhihi as to penalty might be received after the hearing date; that has not eventuated.

8. Having regard to all of the circumstances, the Adjudicative Committee has determined that it is satisfied that it is just and reasonable to now proceed to issue a decision on the papers.

PENALTY
9. Mr Irving has filed submissions in relation to penalty. Those submissions were filed in advance of the hearing and also provided to Mr Rauhihi.

10. The Adjudicative Committee and the parties have also been provided with a Summary of Facts which can be summarised as follows:

a. On Wednesday 23 March 2022 Investigators from the Racing Integrity Board conducted routine drug testing at Levin Racecourse.

b. Upon arrival on the racecourse, Investigators observed Mr Rauhihi leading a horse in the new tie-ups closest to the stables. Also present with the horses were Mr Rauhihi’s brother Mr Stephen Rauhihi, a prohibited person under the Rules, and Unlicenced Track Rider Darren Eriha.

c. Mr Rauhihi was one of eight people selected for testing who were performing a safety sensitive activity that day. Mr Rauhihi was served with a drug testing notification form at 8:15am.

d. At 10:06am Mr Rauhihi completed the required paperwork with the drug testing official from the Drug Detection Agency.

e. When asked to provide his urine sample in the cubicle of the testing van, Mr Rauhihi began to talk loudly and make noises as he was producing his sample.

f. Mr Rauhihi was observed by the drug testing official to have a foreign object in his hand as the testing cup was filled with liquid.

g. The testing official took the sample from him and checked the temperature of the liquid. No temperature had registered on the cup gauge, and the outside of the cup was cold to touch. The temperature range for a urine sample is between 33 to 38 degrees Celsius.

h. The drug testing official advised Mr Rauhihi of this fact and asked him if he had brought a sample in with him. Mr Rauhihi denied this and was then asked to do another test.

i. RIB investigators were advised, and Mr Rauhihi spoken to. Mr Rauhihi continued to deny he had introduced a foreign sample into the cup.

j. Approximately 40 minutes later Mr Rauhihi provided a valid urine sample, which upon screening analysis returned a non-negative indication reading for Cannabis (THC).

k. The sample was forwarded to ESR laboratory for further analysis.

l. When the RIB Investigator spoke to Mr Rauhihi about the screening result, Mr Rauhihi explained that he smoked pot regularly.

m. On 28 March 2022, ESR confirmed in a report that the urine sample provided by Mr Rauhihi was positive to Cannabinoids at a THC acid level of 66mg/l. On the scale of 15-300mg/l this reading is considered low range.

BACKGROUND
11. Mr Rauhihi is 35 years of age, and has held a Trainer’s Licence since 2017, training from stables on the Levin Racecourse, he has previously been an Apprentice Jockey.

12. Mr Rauhihi has a previous charge for returning a positive sample to Cannabis in 2019.

SUBMISSIONS AS TO PENALTY
13. Mr Irving in his penalty submissions notes that there have only been two previous decisions involving a dishonest act by a Licence Holder during the drug sampling process.

a. NZTR v B Herd and O Bosson
In that case, at Herd’s request Mr Bosson supplied a quantity of urine to Mr Herd in a Berocca container which Mr Herd passed to the tester as his own urine which tested clear. When confronted some days later Mr Heard admitted the deception and received a 15-month disqualification.

b. A further case, of which the judgement detail was unable to be located, was NZTR v W Hillis (2002) where a 12-month disqualification was imposed.

14. In relation to the Cannabis charge, the Adjudicative Committee is referred to two decisions by Mr Irving,

a. That of RIU v C Rauhihi (2019) in which a Trainer tested positive to Cannabis in excess of 300mg/l and received a $1000 fine.

b. The Adjudicative Committee is also referred to the case of RIU v T Bishop (2016) where a Trainer and Track Rider tested positive to Cannabis at a rate of 30mg/l and received a six-week suspension from riding and costs of $187.50. This suspension did not include the Trainer’s Licence, although Mr Irving submits that was incorrect per Rule 1106(1b) of the Rules.

15. In further submissions, as to aggravating factors, Mr Irving notes that Mr Rauhihi has been involved in the Racing Industry for many years, and ought to have a good understanding of the importance of maintaining integrity in Racing, particularly as a holder of a Trainer’s Licence.

16. It is submitted by Mr Irving that the behaviour of Mr Rauhihi is detrimental to the image of Thoroughbred Racing and that the intent to deceive was pre-meditated and deliberate in an attempt to undermine the drug testing process. When questioned by the RIB Investigators, Mr Rauhihi initially denied that he had supplied a sample of somebody else’s urine.

17. In addition, it is noted Mr Rauhihi has a previous charge for Cannabis from July 2019 in which he received a $1000 fine.

18. Mr Rauhihi has admitted to being a regular user of Cannabis.  When rehabilitation through drug counselling was discussed, Mr Rauhihi made reference to the fact he had been smoking pot for 20 years and that his use was not a problem, and further that it would be legal soon. Mr Irving also drew the Adjudicative Committee’s attention to the fact that Mr Rauhihi has a previous misconduct charge from June 2019 when he assaulted another Trainer at the Levin jumpouts. Mr Rauhihi received a $1300 fine and was also charged and convicted for common assault in the District Court.

19. In mitigation, Mr Irving has noted that Mr Rauhihi has admitted to the two charges at the earliest possibility and that the recording of 66mg/l is considered low, the range being between 15 to greater than 300mg/l, and appears consistent with Mr Rauhihi’s explanation of being an occasional Cannabis user.

20. Mr Irving seeks an 18-month disqualification for the dishonest act and a six-month suspension of Mr Rauhihi’s Trainers Licence, backdated to 31 March when he was stood down.

MR RAUHIHI’S SUBMISSIONS
21. As noted above, Mr Rauhihi has been afforded numerous opportunities to be heard by the Adjudicative Committee and has not availed himself of those opportunities, therefore the Adjudicative Committee is left with little to rely on other than available inferences from the statements Mr Rauhihi has made as recorded in the Summary of Facts.

DECISION
22. The Adjudicative Committee considered the submissions of the RIB as to penalty. Mr Rauhihi has offered little in the way of mitigation. In addition, the Adjudicative Committee considers the attitude he expresses to be concerning. He does not appear to show any interest or willingness to engage in drug counselling, nor would it appear has any regard for the serious risk drug taking of any form poses to other persons engaged in the Racing Industry in a safety sensitive activity.

23. Mr Rauhihi’s comment that Cannabis was going to be legal soon, in the Adjudicative Committee’s view misses the point entirely. Even if it were the case that Cannabis was legalised, it would not in any way detract from the serious and significant obligations Mr Rauhihi would have in relation to consumption of any impairing substance, legal or otherwise, when undertaking activities in the Industry in a licenced capacity.

24. In relation to the use of Cannabis, Mr Rauhihi’s cavalier attitude discloses a concerning attitude which shows a complete disregard for the safety and wellbeing of all other participants in the Racing Industry and the importance of their safety and wellbeing.

25. In relation to the dishonest act, the Adjudicative Committee is left with no doubt that this was a very deliberate, albeit unsophisticated attempt to undermine the drug testing which took place. It was fortunate that the drug testing agency was able to immediately detect a clear error in the sample and take immediate action to rectify the testing process.

26. Mr Rauhihi discloses further dishonesty in his initial denials when confronted with these allegations, notwithstanding it being plainly evident from the temperature testing that the sample had been deliberately compromised.

27. The drug testing regime rolled out across racecourses is an important mechanism by which the Racing Industry ensures, not only the integrity of participants in racing, but much more significantly any actions intended to thwart the integrity of the drug testing process must be a matter which the Industry takes very seriously, not only for its reputation, but also the health and safety of all participants in it. This is particularly amplified in the context of the broader health and safety obligations imposed on all workplaces.

28. Mr Rauhihi’s behaviour raises serious questions as to whether he is a fit and proper person to participate in the Industry on an ongoing basis. It is incumbent upon Mr Rauhihi to reflect very seriously on the responsibilities that come with the privilege of holding a Licence. The Adjudicative Committee notes that similar integrity issues in sport in the context of refusal or failure to provide a sample routinely attract a penalty in the region of two years. This was noted in the case of Drugs Free Sports NZ v Ruben (2010) in a NZ Rugby League matter before the Sports Tribunal of NZ.

29. In the Adjudicative Committee’s view, conduct which touches on the failure or refusal to provide drug samples when requested, but more seriously, interference with such samples is the sort of behaviour that ought to attract significant penalty.

30. As noted, Mr Rauhihi has provided little by way of mitigation, but the Adjudicative Committee notes that at the age of 35 years he is at the younger end of Holders of a Trainer’s Licence, and to that end notes that if he were to engage in appropriate rehabilitation efforts the door should not be closed entirely to the possibility of his return to the Industry in some form in the future.

31. In relation to Information A15817 the Adjudicative Committee has considered all the information before it and reached the conclusion that the offence is appropriately dealt with by way of disqualification, and a disqualification period of 24 months is imposed.

32. The date of disqualification shall commence on 31 March 2022.

33. In relation to Information A15818, a suspension of six weeks is imposed and will be served concurrently.

COSTS
34. No order for costs was sought by the RIB.

35. No costs are imposed by the Adjudicative Committee.