Appeal – Written Reserved Decision dated 8 November 2022 – Jazmin Smith

1. INTRODUCTION AND BACKGROUND

1.1. Jazmin Smith is a Licensed Stable Hand employed by a Licensed Trainer at Ruakaka.

1.2. On 4 May 2022, TAZIMOTO, a horse part owned by Ms Smith, returned a positive swab to Methamphetamine after winning a race at Ruakaka. On 24 May 2022, Ms Smith was requested by an Investigator to provide urine and hair samples. Analysis of the samples disclosed that they contained Methamphetamine and Amphetamine.

1.3. Ms Smith was charged with breaching Rule 656(3). She pleaded guilty and at a hearing before the Adjudicative Committee, was disqualified, pursuant to Rule 803(3) (Maximum penalties pursuant to Rule 803(3): disqualification for up to 5 years, suspension for up to 12 months, and a fine not exceeding $50,000) for a period of 12 months. The Adjudicative Committee ordered that if Ms Smith successfully completed rehabilitation treatment with the Salvation Army for a period of nine months and thereafter provided negative urine and hair samples to any prohibited drug, the remaining three months of the disqualification would be suspended.

1.4. Ms Smith appeals on the basis that the penalty imposed was excessive. The focus of her submissions is that her disqualification should have been backdated to 2 June 2022 which is the date upon which she was stood down as a result of the positive drug test.

1.5. The Appeals Tribunal has therefore considered whether there is power to backdate a starting date of a disqualification. It has also separately considered whether the penalty imposed was appropriate.

2. BACKDATING OF DISQUALIFICATIONS

2.1. In response to the Appellant’s submission that her disqualification should be backdated to the date she was stood down, the RIB stated that it was neutral on the issue but that it sought a ruling, noting that there had been some inconsistency on the issue in the past.

2.2. The Appeals Tribunal has reviewed previous decisions of Adjudicative Committees that have backdated disqualifications. It has, however, upon considering the issue in this matter, reached a determination that there is no power to backdate a starting date of a disqualification. Our reasons for that are as follows:

a) Pursuant to Rule 1101(1) “Each disqualification…will take effect immediately, unless the Tribunal imposing the disqualification imposes a later date.” The wording of this section is clear. A disqualification takes effect immediately unless deferred. Nothing in the section permits the backdating of a disqualification. It cannot be said that this is an oversight as the Rules specifically address when a disqualification is to commence.

b) It is noted that disqualification is not the same as a suspension of a licence or a person being stood down. Pursuant to Rule 1104, a disqualification requires there to be several disabilities on the qualified person. They exist from the date it is made. A suspended person may do a number of things that a disqualified person may not. Therefore, if the order were to be backdated, a disqualified person may well have done a number of things that they were not permitted to do pursuant to a disqualification during the backdated period. This would render the disqualification nugatory and arguably create confusion.

2.3. While the Appeals Tribunal is clear that backdating is not permitted, it does not follow that the standdown or suspension period has no relevance to the penalty to be imposed. It is a mitigating factor that must be considered.

3. DECISION OF THE ADJUDICATIVE COMMITTEE

3.1. This was Ms Smith’s first offence. When appearing before the Adjudicative Committee, she admitted that she was an occasional user of Methamphetamine. Subsequent to her positive test, she sought treatment from counsellors at the Salvation Army, and the Adjudicative Committee had before it a report from the Senior Counsellor and the AOD clinician to the Racing Industry. It was noted that Ms Smith had been attending individual counselling and that she appeared genuinely engaged in sessions and was motivated to do the work required to beat the addiction.

3.2. The Adjudicative Committee noted that serious drug use by those who participate in the Racing Industry, put themselves and others at risk and tarnished the reputation and integrity of the Racing Industry. They observed that it had repeatedly been said that drug use cannot be tolerated and significant penalties, to deter others and denounce the behaviour, are required.

3.3. In terms of mitigating factors influencing her sentence, the Adjudicative Committee stated as follows:

“In her submissions to the Adjudicative Committee, Ms Smith expressed remorse and expressed the opinion that she alone was to blame for the positive swab returned by TAZIMOTO. We are not at all sure of the accuracy of that claim or her opinion, but it is not necessary for the Adjudicative Committee to discuss that issue further as the only issue is the extent and nature of any penalty for her positive test on 24 May 2022 to be fixed.

Ms Smith has no previous breaches of the Rules, resides with her husband and teenage children in Ruakaka, and she has sought help for her involvement in taking this highly addictive toxic drug. Any personal issues of hers need not be recorded. They are all mitigating factors we take into account.”

3.4. In imposing sentence, it was stated:

“Accordingly, the penalty we fix is that she is disqualified for a period of 12 months, but if she successfully completes her rehabilitation treatment with the Salvation Army for a period of nine months and thereafter to the satisfaction of the NZTR and RIB she provides negative urine and hair samples to any prohibitive drug, the remaining three months of the disqualification will be suspended.

The disqualification commences today, 23 August 2022.”

4. DISCUSSION

4.1. As stated, Ms Smith sought for the effective period of her disqualification to be reduced by way of backdating it to 2 June 2022. This would have reduced her effective sentence by approximately 2 ½ months.

4.2. We have already determined that we do not have the power to backdate a disqualification, however, we agree with Ms Smith that the length of her disqualification should be reduced as the penalty imposed was inappropriate. Our reasons for coming to this conclusion are as follows:

a) Comparable cases involving a breach of Rule 656(3) committed by first time offenders, have led to disqualifications of 12 months which have been backdated to the beginning of the stand down period. (RIB v S Collins, RIB v D Eriha and RIB v R Harris (which involved an 18 month disqualification for a second offence but backdated).  Ms Smith’s effective penalty is therefore higher than standard.

b) Rule 657(1)(b) provides that a Licenceholder’s licence is automatically withdrawn where the person has tested positive to any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance and/or its metabolites, artifacts or isomers until the Adjudicative Committee issues a substantive decision in relation to any Information filed against the person in relation that positive test.

c) A standdown under Rule 657(1)(b) addresses the apparent risk to animal welfare and the safety of participants arising from a positive test and pending a substantive decision of the Adjudicative Committee. In doing so it involves the imposition of substantive disabilities on a Licence Holder, albeit less than a disqualification.

d) Stand down periods are a mitigating factor that should be considered. It does not follow, however, that the penalty should be reduced to reflect the exact time spent stood down. They are not ‘like for like’ as a suspended person may do a number of things that a disqualified person may not.

e) The Adjudicative Committee in this matter did not refer to the stand down period when referring to mitigating factors. It is something that should have been considered.

4.3. Accordingly, we reduce Ms Smith’s disqualification to a period of 10 months. Further, if Ms Smith completes the rehabilitation treatment with the Salvation Army for a period of eight months and thereafter to the satisfaction of the NZTR and RIB she provides negative urine and hair samples to any prohibitive drug, the remaining two months of the disqualification will be suspended.

4.4. There is no order as to Costs.