Non Raceday Inquiry – Written Penalty Decision dated 12 January 2023 – Ethan Wenn

Introduction

[1] This is the penalty decision arising from a charge lodged against Licensed Stablehand, Ethan Wenn (the “Respondent”) by Racing Integrity Board (RIB) Investigator, Mr R Carr (the “Applicant”).

Particulars of the charge are:

THAT the Respondent on the 23rd of November 2022 at the Te Aroha Racecourse, 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.

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:

Rule 803(3)

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,

Rule 812

[4] Furthermore, in addition to any penalty that may be imposed the Adjudicative Committee at their discretion may impose the provisions of Rule 812, which provides that the Adjudicative Committee may:

(a) in addition to or in substitution of any penalty imposed under Rules 801, 803 and/or 804, require the person committing the breach to complete a counselling or rehabilitation course of the type specified by the Adjudicative Committee; and/or

(b) stay, in whole or in part, and for such period and upon such terms and conditions as it thinks fit, the operation of any penalty imposed for a breach of the Rules, provided that, in the event of any failure to comply with any of the terms and conditions of the stay, the Adjudicative Committee may order that the penalty or the remaining part of the penalty take effect.

The hearing

[5] The charge was heard at the Matamata Racecourse on 11 January 2023. The Respondent was supported at the hearing by his mother, Mrs Trish Wenn.

General Information

[6] Pursuant to Rule 903(2)(d) on 2 December 2022, the RIB Chief Executive, Mr M Clement has authorised the filing of Information (No. A17963) alleging that the Respondent was in breach of Rule 656(3) on the said date.

[7] Full particulars of the charge are contained within the Information and at paragraph 1.

The plea

[8] The Respondent has admitted the charge. This was confirmed at the commencement of the hearing. On that basis the charge is deemed to be proved.

Summary of Facts

The key salient points are as follows:

[9] The Respondent, Ethan Wenn, is the holder of a Stablehand Licence issued by New Zealand Thoroughbred Racing [NZTR]. He is 20 years old and is currently employed by a Class A Trainer based in Te Aroha.

[10] On Wednesday the 23 November 2022, Investigators from the RIB conducted routine drug screening at the Te Aroha Racecourse and surrounding thoroughbred training establishments.

[11] The Respondent was observed undertaking a ‘safety sensitive activity’ at his employer’s stable. Along with others who were also undertaking safety sensitive activities, the Respondent was selected for (drug) testing. Appropriate notices and advisories were provided to the Respondent after which he presented to the Drug Detection Agency (TDDA) van for testing – on site.

[12] The Respondent provided a (urine) sample which was subsequently packaged and sent to Environmental Science and Research Limited (ESR) for analysis.

[13] On 30 November 2022, ESR provided a Certificate of Analysis which confirmed that the sample provided by the Respondent was positive to cannabis at a THC Level of >500ng/ml.

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

[15] On 1 December 2022, the Respondent was advised of the analysis result and a Stand Down Notice was subsequently issued.

[16] When spoken to about the result the Respondent admitted to being a regular user of Cannabis stating, “that he used it every couple of days ….”. The reason given for his use of Cannabis was said to be for medical reasons.

[17] The Respondent has not previously breached the Rules of Racing.

Submissions as to Penalty – Applicant

In written penalty submissions on behalf of the RIB Mr Carr submitted that:

[18] All Industry participants are aware of the use of drug / prohibited substance policy and the consequences should they not comply. Drug testing is conducted to maintain a safe and healthy workplace and to maintain the integrity of the Industry.

[19] The Respondent has admitted the breach, the details of which are contained in the agreed Summary of Facts. Of particular relevance is the that the ESR reported level of THC [>500ng/mL] is unhelpful in determining the use of Cannabis by Mr Wenn but is consistent with his explanation. The minimum level tested is 15ng/mL and a high level considered to be over 1000ng/mL.

Sentencing Principles

[20] 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.

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

Precedents

[22] Historical penalties for breaches of the Industry drug laws show some divergence dependent on the type of drug, the amount of the drug in the system and additional circumstances.

The following are recent penalty decisions involving a Class A Rider and Licensed Stablehand / Trackwork Riders who have tested positive to THC Cannabis:

• RIB v T Thornton (22.08.2022) – Rider [Class A] – Level 110ng/mL; six-weeks suspension with one week stayed subject to the Respondent meeting certain terms and conditions, and costs of $187.50.
• RIB v R Ward (10.08.2022) – Stablehand [non-riding] – Level 100ng/mL; six-weeks suspension with one week stayed subject to the Respondent meeting certain terms and conditions, and costs of $187.50.
• RIB v R Aukett (14.06.2022) – Trackwork Rider – Level >230 ng/mL; six-weeks suspension and costs of $187.50.
• RIB v B Herd (06.05.2022) – Trackwork Rider – Level 130ng/mL; seven-weeks suspension and cost of $187.50. Previous drug related history.
• RIB v A Scott (04.03.2022) – Trackwork Rider – Level 500ng/mL; nine-weeks suspension and costs of $187.50. Several aggravating features present in this case.

Aggravating Factors

[23] The Respondent has acknowledged and understands that Cannabis is a Class C Controlled Drug, and its use is prohibited under the Rules.

[24] The Respondent was referred by RIB to the Salvation Army – AOD Clinician to NZ Racing Industry for an assessment and assistance. The Salvation Army Senior Caseworker has advised that Mr Wenn was not interested in receiving treatment through them. He was provided with advice around alternative medications for anxiety disorder and depression.

Note

This submission was clarified during the hearing. The Adjudicative Committee was advised that the offer of referral to the Salvation Army Caseworker was not taken up, because the Respondent self-initiated his own professional medical advice / rehabilitation which he is still following.

Mitigating Factors

[25] In mitigation, The RIB submits, that the Respondent has acknowledged that he suffers from anxiety, and he has cooperated fully with Investigators.

Conclusion

[26] In conclusion, the RIB seeks a six-week suspension of Mr Wenn’s Stablehand Licence, backdated to 1 December 2022, this being the date when he was stood down.

[27] The RIB also seeks ESR costs of $187.50 for analysis, payable to the RIB.

Submissions as to Penalty – Respondent

[28] The Respondent, Mr Wenn provided written submissions which were prepared and submitted on his behalf by his mother, Mrs Trish Wenn.

[29] Due to the submissions including some personal, (medical), information, the Adjudicative Committee was asked to treat them as ‘In Confidence’. Notwithstanding, the following (summarised and para-phrased) extracts from the submission are assessed as being of relevance and can be disclosed without unnecessarily compromising the Respondent’s privacy.

….The Respondent realises the situation that he is in because of his use of Cannabis and has sought medical intervention in relation to his use of the drug.

The Respondent has been around horses all his life and chose to take a different career path – an Apprenticeship to become a chef and during this time lost his way and started to smoke cannabis ….and has returned home to embark on a fresh career within the Racing Industry.

….His employer (a Licensed Trainer) is his uncle, is supportive and has provided him with a full-time position as a Stablehand. He commenced on a full-time contract on the 17 November 2022 and was said to be doing really well until the day of the drug test (23 November 2022) when he was drug tested.

….The Respondent is said to know about safety around horses and keeping people safe including his work colleagues and the horses.

Decision

[30] The Adjudicative Committee has determined that a 6-week suspension is an appropriate penalty.

Reasons

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

a) The circumstances of this breach as outlined in the agreed Summary of Facts.

b) The submissions lodged by the Applicant and on behalf Respondent including mitigating and aggravating factors. The Respondent’s admission, his cooperation with the investigation; and his good record were also considered.

c) The need to impose a penalty that denounces drug use by Industry participants, when engaged in safety sensitive activities. The penalty imposed must also operate as a deterrent to others who may contemplate breaching the drug use Rules.

d) The RIB submitted five precedent cases, where it was said that the offending was broadly of a similar nature to this breach. Penalties in those cases ranged between 6 and 9 weeks (suspension). The Adjudicative Committee assessed the cases of Ward and Aukett to be the most comparable with the circumstances of this case. They both received 6-week suspensions, the same period imposed in this case.

e) The Respondent’s level of culpability is assessed as mid-range. By his own admission, his use of Cannabis cannot be categorised as a ‘one-off’ use; as on interview he admitted to the use of Cannabis on a regular basis. Mrs Wenn advised the Adjudicative Committee that he has since made a concerted effort to stop using Cannabis and has taken proactive steps to seek medical assistance. Mrs Wenn is optimistic that this, coupled with the support of his family including his uncle (employer), Ethan will learn lessons out from this and move forward in his new career with some confidence.

f) The Respondent’s personal circumstances including his age, the fact that he has a supportive family and other matters that were provided to the Adjudicative Committee (‘In Confidence’) have been assessed and given due weight. The Adjudicative Committee believes that under the circumstances there is potential for rehabilitation, and on that basis a rehabilitative approach, in the long-term, is the best option for resolving this matter. The Adjudicative Committee, therefore, encourages Ethan to continue on the (medical) intervention path that he is currently taking. This is in keeping with the policy intent that underpins Rule 812, which encourages counselling and or rehabilitation as part of or in addition to any penalty imposed.

g) A final factor considered was that the Respondent was stood down on 1 December 2022. As a consequence, he has not been able to undertake the range of employment duties required of him in terms of his Stablehand Licence. This of course has impacted on his earning ability.  The purpose of requiring stand down is for safety / animal welfare reasons and not to needlessly punish further or add to any penalty to be imposed.  However, it is a mitigating factor to be taken into account, especially in this case where the period of time the Respondent has already spent on stand down (6 weeks) equates to the 6-week penalty imposed.  To impose more than 6 weeks would result in a disproportionate penalty and one that is inconsistent with comparable penalties that have been imposed in like cases.

Penalty and Costs:

[32] The Respondents Stablehand Licence is suspended for 6 weeks.

[33] The period of suspension is backdated to 1 December 2022 (this being the date when he was ‘stood down’) and will conclude on 11 January 2023, meaning that he can recommence work as a Stablehand from 12 January 2023.

Costs

[34] Costs of $187.50, being the cost of the sample analysis carried out by the ESR, are awarded in favour of the Applicant.

[35] This charge was heard on a raceday. On that basis, no costs are sought or awarded in favour of the Adjudicative Committee.