Appeal – Decision dated 15 January 2025 – Shane Simon

1. INTRODUCTION

1.1 The RIB has appealed a Decision of an Adjudicative Committee with reference to a breach by Mr Simon of Rule 656(3) which relates to Prohibited Substances. That Decision of the Adjudicative Committee was dated the 18th day of November 2024.

1.2 The Adjudicative Committee imposed a fine of $3,000 and a requirement that Mr Simon pay ESR fee of $187.50.

1.3 Mr Simon had indicated that he would deny the charge, but some three days before the hearing, he indicated a guilty plea.

2. THE CASE FOR THE RIB

2.1 It is submitted that there should have been a period of disqualification rather than a fine. It is said that the appropriate disqualification would have been for 10 months, with a 2 month period of that disqualification to be suspended, upon successful completion of certain conditions.

2.2 It is submitted for the RIB, that a period of disqualification would have been consistent with relevant cases which were placed before the Adjudicative Committee by the RIB and its penalties which were placed before the Adjudicative Committee in its penalty submissions. This, it is said, is necessary to demonstrate the inherent seriousness of a breach of the relevant Rule involving Methamphetamine.

2.3 The RIB submits that the Adjudicative Committee may have wrongly interpreted Rule 803(3)(c) by treating the breach as a first offence, for which disqualification could not be imposed. It is pointed out that Rule 803(3)(c) applies to alcohol related offences and does not have reference to a breach involving Controlled Drugs, of which Methamphetamine is one of those identified.

2.4 Before the Adjudicative Committee, the RIB emphasised Mr Simon’s denial of Methamphetamine use and his declining the offer of assistance to undergo an assessment and receive support from a clinician.

2.5 The Tribunal has referenced the authorities placed before the Adjudicative Committee by the RIB. It is pointed out in the submissions, that in all cases, a period of disqualification was imposed. The submissions point out that the Adjudicative Committee did not find Mr Simon’s explanation for the positive test to be credible and that his claim of inadvertent contamination was not accepted.

2.6 It is the RIB’s position that Rule 803(3)(a) which provides for suspension or disqualification involving Controlled Drugs, is the appropriate Rule and that Methamphetamine use requires a penalty that reflects the seriousness of the breach – Methamphetamine being a Class A Prohibited Drug under the provisions of the Misuse of Drugs Act 1975.

2.7 The submissions for the RIB acknowledge that the Adjudicative Committee made reference to deterrents as important in maintaining industry standards and submits that a fine does not provide an adequate deterrent.

2.8 The RIB points to three matters which it says were aggravating considerations. These are:
a) Mr Simon’s failure to take accountability, demonstrated by his denial of the offence and his claims of inadvertent contamination or prescribed medication.
b) Mr Simon’s refusal of assistance from a drug clinician.
c) Mr Simon has extended experience in the Thoroughbred Racing Industry and must have been fully aware of the risks associated with Prohibited Drugs.

3. THE POSITION OF MR SIMON

3.1 Written submissions by email were received from Mr Simon on the 20th of December 2024.

3.2 Mr Simon complains about the release of the Adjudicative Committee’s finding to Facebook and the NZ Thoroughbred Chat page and describes this as “sheer ignorance and stupidity from RIB”.

3.3 The material from Mr Simon is redolent with extravagant language. He says of Mr Carr of the RIB that “has a personal vendetta against me, as he seems hellbent on crucifying me”. Such language from Mr Simon is extravagant and unhelpful. The Tribunal can see no justification for it.

3.4 The submissions from Mr Simon do not address the Decision of the Adjudicative Committee under appeal, or the submissions of the RIB in support of the appeal, which seek disqualification rather than a financial penalty.

3.5 Mr Simon acknowledges that he refused the offer of drug rehabilitation and goes on to say “I’m not on any contraband but as stated at Te Rapa hearing I would be happy to participate if required”.

4. DISCUSSION

4.1 Methamphetamine is a Class A Prohibited Drug. The danger it imposes is well known both within the Thoroughbred Racing Industry and in the wider community. Mr Simon’s proposition that the drug may have entered his system inadvertently is not credible.

4.2 The Tribunal considers that the Adjudicative Committee may have not fully appreciated the distinction in Rule 656(3) between alcohol related breaches and breaches involving Controlled Drugs. Further, where breaches have occurred previously with reference to Controlled Drugs, there have been periods of disqualification imposed.

4.3 The Tribunal is of the view that a disqualification was the correct penalty in this case and that the imposition of a modest fine was not appropriate.

4.4 The RIB proposes a disqualification of 10 months, with a 2 month period being suspended if there is a successful completion of conditions in relation to drug and alcohol counselling or testing. The Tribunal is of the view that a disqualification of 9 months would be appropriate and this be suspended for 3 months upon successful completion of drug and alcohol counselling or testing. The disqualification just outlined, will take effect from Saturday the 1st of February 2025. This will give Mr Simon time to make any arrangements that may be necessary, for the care of horses, for which he currently has responsibility.

4.5 The order that Mr Simon reimburses the ESR analysis costs of $187.50 remains in place.

4.6 Given the outcome of the Appeal and the consequences for Mr Simon, there will be no order for costs as between the parties.