Appeal – Written Reserved Decision dated 11 November 2022 – Darren Smith

1. INTRODUCTION AND BACKGROUND
1.1. Darren Smith is a Licensed Trainer based at Ruakaka.

1.2. On 4 May 2022, TAZIMOTO, a horse trained by Mr Smith, returned a positive swab to Methamphetamine after winning a race at Ruakaka. Subsequent analysis of samples (including a “B” sample), confirmed the presence of Methamphetamine.

1.3. On 24 May 2022, Mr Smith himself provided a urine and hair sample. Analysis confirmed the presence of Methamphetamine and Amphetamine.

1.4. Mr Smith was charged with two offences:

a) In breach of Rule 804(6), being a trainer of and responsible for TAZIMOTO on 4 May 2022 he brought the horse to the race meeting and it competed, after which it returned a positive analysis from a post-race swab, to the controlled drug Methamphetamine, a prohibited substance; and

b) In breach of Rule 656(3), that on 24 May 2022 having been required to provide a urine sample, he provided urine which upon analysis was found to contain the illicit controlled drugs Methamphetamine and Amphetamine.

1.5. Mr Smith admitted the two breaches.

1.6. Mr Smith was disqualified for nine months for the breach of Rule 656(3). For the breach of Rule 804(6), a disqualification of 18 months was imposed. The penalties were cumulative, meaning that a total disqualification period of two years and three months.

1.7. Mr Smith appealed on the basis that the penalty imposed was excessive. The focus of his submissions is that the two disqualification periods should run concurrently. As such, he submits that the effective disqualification period should be one of 18 months.

2. DECISION OF THE ADJUDICATIVE COMMITTEE

2.1. There is no reference in the decision of the Adjudicative Committee or the submissions filed to Mr Smith having committed any previous offences. On that basis, we infer that these were his first.

2.2. Mr Smith, when interviewed by the RIB Investigator, said that he could not explain how the positive test came about. Before the Adjudicative Committee, he contended that his stable hand employee had been a user of Methamphetamine and that this had caused Mr Smith to be unintentionally contaminated by it. He stated that he had never consumed Methamphetamine in any form and that the positive analysis of both urine (and hair) samples could only have arisen from some association with his employee. Mr Smith privately underwent a drug test on 4 August 2022 (10 weeks after being tested on 24 May 2022). The return was negative to illicit drugs.

2.3. Mr Smith said that his business was primarily in “pin hooking” yearlings to prepare for sale as two year olds. He currently owns four racing horses and one two year old. He has only recently obtained his Class B Trainer’s Licence.

2.4. The Adjudicative Committee noted that although the charge of returning the positive sample on 24 May 2022 related only to the urine sample, the hair sample from Mr Smith from that date also revealed Methamphetamine present in his system.

2.5. The hair sample returns of Mr Smith and his employee were indicative of long term use, or presence in the bloodstream (however it got there). The level returned from the analysis was significantly elevated.

2.6. While there was discussion before the Adjudicative Committee about how and when the Methamphetamine had got within the horse and his samples, ultimately Mr Smith accepted that he was liable for the breaches of the Rules relating to him and TAZIMOTO.

2.7. The Adjudicative Committee referred to previous decisions where it has been noted that animal welfare in the Industry is a paramount consideration in cases such as these and that any breach must not be tolerated as it strikes at the very heart of the integrity of the Racing Industry. It was also noted that it is incumbent on Owners and Trainers to protect their horses from exposure to Methamphetamine.

2.8. The Adjudicative Committee stated that the nature of the drug involved, namely Methamphetamine, was a particularly aggravating feature. It noted that in previous cases where horses and greyhounds had tested positive to Methamphetamine, this resulted in disqualification ranging from 18 months to three years. (RIB v Lockett, RIB v Toomer, RIU v Newton, RIU v Schofield and RIB v Turnwald).

2.9. The RIB sought a total disqualification in this case of four years. The Adjudicative Committee determined that that would be excessive. It imposed cumulative penalties of nine months and 18 months disqualification. The effect being a total disqualification of two years and three months.

3. DISCUSSION

3.1. We have no difficulty in determining that the total disqualification period imposed by the Adjudicative Committee on Mr Smith was appropriate. The penalty is consistent with other previous cases and appropriately balances the need to deter and denounce breaches of this kind with Mr Smith’s interests.

3.2. Mr Smith has submitted that he should have received a concurrent sentence as was done in the case of RIB v Lockett (April 2022). We refer to that case to demonstrate that Mr Smith’s penalty was appropriate and could have perhaps led to a longer disqualification period.

3.3. Ms Lockett was a Class A Licensed Trainer also charged with breaches of Rules 804 and 656. Samples taken from the horse in that case also tested positive for Methamphetamine, as did the samples taken from Ms Lockett.

3.4. Ms Lockett admitted to being a casual Methamphetamine user. In her case, she had engaged with a drug and alcohol counsellor on a regular basis and was therefore taking positive steps to address her addiction.

3.5. On both charges, a penalty of three years disqualification was imposed. Those disqualifications, however, were to be served concurrently, resulting in an effective period of disqualification of three years – nine months longer than that imposed on Mr Smith.

3.6. It is certainly arguable that Ms Lockett had more mitigating factors in her favour due to the rehabilitative steps taken by her relating to her Methamphetamine use. By comparison, Mr Smith denied being a user of Methamphetamine and therefore had taken no active steps in this regard.

3.7. We note that in the case of Ms Lockett, her disqualification is to be suspended after a period of 18 months if conditions relating to ongoing rehabilitation from drug addiction are satisfied.

3.8. We are of the view that Mr Smith should be given a similar opportunity to shorten his disqualification period if he proves that he is drug free for a significant period. There is merit in this approach because it encourages proper rehabilitation and is therefore in the interests of animal welfare and ensuring that Licensed people are not affected by illicit drugs. In our view, it is preferable to Mr Smith simply serving the full disqualification period and then re-entering the Industry.

3.9. Accordingly, we confirm that Mr Smith’s disqualification is for the periods previously imposed, being a total of two years and three months. However, we consider it appropriate to provide Mr Smith with the opportunity to give force to his position that, despite the positive test, he is not a user of Methamphetamine. We therefore add the following condition to his disqualification:

a) If Mr Smith during his disqualification from December 2022 until 26 February 2024 is able to demonstrate he is drug free by the voluntary provision, through an approved provider, of bi-monthly negative drug tests then the remaining period of his disqualification will be suspended.

3.10. There is no order as to Costs.

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ADDENDUM TO DECISION OF THE APPEALS TRIBUNAL

1. Before the Appeals Tribunal Mr Smith maintained his denial that he has ever consumed Methamphetamine. The negative drug test produced by Mr Smith for the hearing before the Adjudicative Committee was discussed before the Appeals Tribunal. That test was a hair sample test undertaken privately by Mr Smith on 4 August 2022 at The Drug Detection Agency , North Shore. Mr Smith at his Appeal indicated a willingness to provide to further drug test results in the future using The Drug Detection Agency. The Appeals Tribunal notes that The Drug Detection Agency holds an ISO17025 accreditation for workplace substance testing in Australia and New Zealand.

2. In the circumstances of Mr Smith maintaining he has not ever consumed Methamphetamine the Appeals Tribunal considered drug counselling or rehabilitation inappropriate, however provides Mr Smith the opportunity to demonstrate by regular drug tests that, as he asserts, he is not a user of Methamphetamine.

3. This Addendum to the Appeals Tribunal Decision is issued to clarify paragraph 3.9(a) of the Decision.

4. In the event Mr Smith voluntarily and at his own cost undertakes bi-monthly drug tests commencing in December 2022 and concluding in February 2024, and each of the tests are negative the remaining period of Mr Smith’s disqualification will be suspended from 26 February 2024.

5. The Appeals Tribunal expects the following process will be followed for the voluntary bi-monthly drug testing:

5.1 The testing is to be undertaken by The Drug Detection Agency.

5.2 The testing is to be hair/follicle testing with the costs of testing and sample collection met by Mr Smith.

5.3 The test results are to be provided to and assessed by an RIB Investigator with a summary and recommendation provided to NZTR upon completion of the period of bi-monthly drug tests.

5.4 Suspension of the remaining disqualification from 26 February 2024 is contingent upon Mr Smith returning negative tests for each of the eight bi-monthly drug tests undertaken in the period commencing in December 2022 and ending in February 2024.

Dated at Auckland this 16th day of November 2022