Appeal – Written Reasons Decision dated 21 September 2023 – Owen Gillies

1. INTRODUCTION

1.1 Mr Gillies’ Appeal was heard at Alexandra Park Raceway on the 12th of September 2023. At the conclusion of the hearing and after some deliberation, the Appeals Tribunal ruled that the Appeal was dismissed. A brief Decision was issued confirming that conclusion, with an explanation that a Reasons Decision would follow. That is now set out below.

2. THE OFFENDING

2.1 The charges that Mr Gillies faced were as follows:

On Thursday 29 June 2023 at Auckland Trotting Club, Alexandra Park, having been required by a Racing Investigator to supply a sample of your urine in accordance with Rule 212(1)(g) and 226(2)(d) of the New Zealand Rules of Harness Racing, you provided urine which upon analysis was found to contain the controlled drugs Methamphetamine, being a Class A Controlled Drug and 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 1003(1) of the Rules. Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relevant to this hearing are Rule 1003 (Penalty Provisions).

Rule 512(1) provides:

Every Driver commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply 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.

2.2 The penalty provisions are as follows:

Rule 1003 provides:

(1) A person who commits a breach of any Rule shall (subject to the Rule 111(12), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:

(a) A fine not exceeding $10,000; and/or

(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c) disqualification for a period not exceeding 12 months.

Rules 1301 to 1304 set out the consequences of a disqualification and or suspension.

2.3 Mr Gillies pleaded guilty. There was a hearing before an Adjudicative Committee on the 17th of August this year. A very comprehensive Written Decision issued, dated the 21st of August this year. The Tribunal has carefully considered that Decision.

3. THE CASE FOR MR GILLIES

3.1 Mr Cornegé, Counsel for Mr Gillies, filed helpful submissions in advance of the hearing. It was contended that the starting point adopted by the Adjudicative Committee of 9 months disqualification was manifestly excessive. This by reference to the maximum offending for a like breach in Thoroughbred Racing. Further, it was submitted that the mitigating factors should have been given greater consideration. It was said that there was no basis for an uplift in the penalty and that a 4-week uplift was excessive. In conclusion, it was said that a lengthy suspension would have been more appropriate rather than a disqualification. With reference to the Cannabis charge, it was said that the penalty imposed there should have been concurrent.

3.2 The submission for Mr Gillies stated that he accepted that there had been a serious breach of the Rules and that the offending warranted a significant penalty.

3.3 Much emphasis was placed upon the equivalent maximum penalty under the Thoroughbred Rules of Racing. There, the maximum penalty is a 5-year disqualification in contrast to the 12-month disqualification under the Harness Racing Rules. In relation to Thoroughbred Racing, the starting point in most cases has been a 12-month disqualification, that being 20% of the maximum penalty. It was said in the submissions, that 9 months starting point in this case, was 75% of the maximum penalty and that this was not appropriate.

3.4 The submissions were critical of the Adjudicative Committee referencing a changing attitude towards the use of drugs.

3.5 With reference to mitigating considerations, the submissions pointed out that Mr Gillies had only one previous breach of the Rules, that this was not drug related and it occurred many years ago. Further, it was explained that he had been under considerable personal stress, that he had recognised the need for help, and it was said that he pleaded guilty at the first opportunity. In these circumstances, it was said that a discount of some 2 months would have been appropriate.

3.6 The penalty of 9 months disqualification can be reduced to 7 months if Mr Gillies undertakes appropriate counselling and rehabilitation and furnishes evidence of that to the RIB. It is acknowledged in the submission for Mr Gillies that this does, in effect, amount to some discounting of penalty for mitigating considerations.

3.7 The submissions for Mr Gillies point to paragraph 67 of the Decision of the Adjudicative Committee and contends that the matters set out there were not aggravating considerations and that in consequence, there should have been no uplift.

3.8 It was contended that given the financial consequences of disqualification, a lengthy suspension rather than disqualification – to use the words of the submissions “could not be said to be disproportionate”.

3.9 Finally, it was said with reference to the penalty for the Cannabis charge, that should have been concurrent. It was contended that there was no basis to treat this as a separate offence that required a penalty to be served cumulatively.

4. THE CASE FOR THE RIB

4.1 Ms Fox had also filed helpful written submissions in advance of the hearing.

4.2 It was acknowledged in the submissions, as had been explained in the Decision of the Adjudicative Committee, that detection of Methamphetamine in Harness Racing was rare. In 2011, the case of RIU v Brownlee, resulted in a 12-month suspension. It was contended for the Respondent, that in the 12 years since that Decision was made, the attitude towards drug use, particularly Class A Drugs such as Methamphetamine, had shifted both in society and in the Racing Industry with recognition that offending of that nature should be denounced and perpetrators held to account.

4.3 The submissions for the RIB set out a significant number of cases in Thoroughbred Racing involving Methamphetamine. The penalties in those cases were summarised in the submissions. The Tribunal is acquainted with all of those Decisions. In each case, a disqualification of 12 months or a period close to that was imposed. The submissions contended that the 9-month disqualification imposed upon Mr Gillies, was a significant reduction when compared to the penalties that had been referenced in Thoroughbred Racing.

4.4 As to the submission that there be a suspension rather than disqualification, the RIB contended that such a penalty would be manifestly inadequate given the serious nature of the offending and contended that Mr Gillies not only undermined the integrity of Racing but had raised serious issues in relation to animal welfare and safety of participants in Harness Racing. It was contended that any penalty imposed for offending of this nature had to serve not only as a denunciation of such conduct, but to be a deterrent to others in the Industry.

5. DISCUSSION

5.1 As earlier explained, the Decision of the Adjudicative Committee is comprehensive. It is some 11 pages. There is a detailed analysis of previous cases. That in reference both to Harness Racing and Thoroughbred Racing. The Decision drew attention to what was described as the belated admission by Mr Gillies that he was still using Cannabis and that he had used Methamphetamine proximate to being tested. Further, that his original explanation to the RIB Investigator was not truthful. The Decision under appeal sets out the relevant and well-established sentencing principles: see para 29. The Adjudicative Committee analysed the difference between the maximum penalties provided under the Harness Racing Rules with those provided under the Rules for Thoroughbred Racing. Plainly, the Adjudicative Committee was conscious of the difference between the penalty provisions. The Adjudicative Committee referenced the recent Decision in Orange v RIU (2021). That Decision dealt with the comparison between Rules under Thoroughbred Racing and Harness Racing. This issue is dealt with in paragraphs 54 to 57 of the Decision of the Adjudicative Committee.

5.2 The Tribunal is conscious that if Mr Gillies undertakes counselling and rehabilitation steps, as he indicated he proposes to do, then the period of disqualification will be 7 months. The Tribunal believes that in making that provision for a 2-month reduction, the Adjudicative Committee was granting Mr Gillies the opportunity to demonstrate a genuine attempt to overcome drug use.

5.3 As set out in the Decision issued by the Tribunal on the 12th of September this year, appeals against penalty before Disciplinary Tribunals may only be allowed if the penalty has been shown to be clearly wrong. Minor adjustments to penalty are not appropriate. The Tribunal cannot identify any error in the Adjudicative Committee’s assessment of all of the relevant considerations and the authorities to which it referenced in the Decision under appeal.

5.4 For the reasons set out here, the Appeal was dismissed. That with reference to both the disqualification and the suspension.

6. COSTS

6.1 The parties were invited to file submissions addressing the issue of costs.

6.2 Both Mr Cornegé and Ms Fox have filed submissions in relation to costs.

6.3 For the RIB, it is said that no costs have been incurred other than the cost of the sample analysis of $187.50. Mr Gillies will pay that sum to the RIB.

6.4 Mr Cornegé points to the fact that the RIB did not instruct Counsel and that there should be no award of costs in its favour. That is agreed as set out on the previous sub-paragraph. It is acknowledged by Mr Cornegé that a costs order can be made in respect of the Tribunal’s costs. The Tribunal is asked to be mindful of the lengthy disqualification imposed upon Mr Gillies and his lack of earning ability.

6.5 Significant costs were incurred assembling the Appeals Tribunal in Auckland. Mr Gillies should make some contribution towards those costs. The Tribunal fixes that figure at $450. The actual costs incurred are significantly greater. In fixing the figure of $450, the Tribunal is conscious of the lengthy disqualification and the impact upon Mr Gillies’ employment.