Non Raceday Inquiry – Written Decision dated 10 October 2022 – Khan McDonald and Destiny Scott

The Respondents, Mr McDonald and Ms Scott, are each charged under r 656(3) with providing a urine sample that contained Methamphetamine and Cannabis.

Mr McDonald is a Licensed Stablehand and Ms Scott is a Licensed Trackwork Rider under the NZTR Rules of Racing.

The Respondents were tested on the same day and both work for the Parsons’ stable. They are partners and expressed a preference for their charges to be heard together. As the facts are remarkably similar, we saw no reason not to accede to their request and the Informant also believed that this was appropriate.

At a hearing at Riccarton on 1 October last, they each admitted two breaches of r 656(3) (Informations A15825 (Methamphetamine) and A15826 (Cannabis) with respect to Mr McDonald, and Informations A15823 (Methamphetamine) and A15824 (Cannabis) with respect to Ms Scott. We found these charges to be proved and informed the Respondents of the outcome of the hearing and the penalties that would be imposed, and that this written decision would follow.

Rule 656(3) relevantly provides: that a Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Trainer’s Premises, who, having been required by an 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. Methamphetamine is a Class A drug; Cannabis is a Class C drug.

The penalty provision is r 803(3) which provides for up to 5 years’ disqualification, or suspension for up to 12 months, and/or a fine of up to $50,000.

Summary of Facts

On 13 September 2022, RIB Investigators conducted routine drug testing at a private training facility in Leithfield, North Canterbury.

On that morning Ms Scott was riding trackwork. She together with Mr McDonald were two of 10 people selected for testing who were performing a safety sensitive activity, and were served with the relevant Drug Testing Notification Form.

At 11.12 am Ms Scott and at 11.51 am Mr McDonald each provided a urine sample to a Drug Testing Official which screened positive to the presence of Methamphetamine/Amphetamine & Cannabinoids [THC]. The sample was packaged to be sent to the ESR Laboratory for confirmatory analysis.

When spoken to by the Investigators, Ms Scott admitted she had smoked both Methamphetamine and Cannabis on the previous Saturday. Mr McDonald admitted he had smoked Cannabis the previous day (Monday) and he had smoked Methamphetamine the previous Sunday afternoon.

On 19 September the ESR issued a Urine Drug Test Report confirming the presence of both Methamphetamine/Amphetamine and THC Acid [Cannabinoids] at a level of 350 ng/mL for Ms Scott and at a level of 400 ng/mL for Mr McDonald.

Both Mr McDonald and Ms Scott were advised of the confirmatory result that day and served a copy of the report and a Stand-down Notice, withdrawing their licences pursuant to r 657(1)(b).

Mr McDonald is 31 years of age and has only been employed in the Racing Industry for a short time. Ms Scott is 20 years of age. Neither had previously been drug tested.

Penalty Submissions

The Informant submitted that the principles of sentencing relevant to this charge could be summarised briefly:

Penalties are designed to punish the offender for his/her 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 Adjudicative Committee for the type of offending in question.

The need to rehabilitate the offender should be considered.

Mr Irving stated that NZTR had been drug testing Industry participants since 1995 and since that time there had been a growing awareness that there was an absolute obligation on Licence Holders to present themselves free of the influences of any drugs. All participants were aware of the policy and the consequences should they not comply. The testing was conducted for two reasons: the need to maintain a healthy and safe workplace; and secondly to maintain the integrity of the Industry.

Comparable cases were identified as:

RIB v Smith (August 2022) — Licensed Stablehand positive to Methamphetamine — 12 months’ disqualification, suspended for 3 months upon successful completion of rehabilitative treatment.

RIB v Eriha (June 2022) — unlicensed Track Work Rider positive to Methamphetamine and Cannabis — 12-months’ disqualification on the Methamphetamine charge, suspended for 3 months upon successful completion of rehabilitative treatment — 6-week suspension on the Cannabis charge, to be served concurrently.

RIU v Harris (June 2021) — Track Work Rider positive to Methamphetamine — 11 months’ disqualification, suspended for 3 months upon successful completion of rehabilitative treatment.

The Informant acknowledged mitigating factors were that both Mr McDonald and Ms Scott had cooperated fully with the RIB Investigators and had admitted the charges at the earliest opportunity. They had each acknowledged their wrongdoing and had both shown remorse for their actions and had engaged with the AOD Clinician to the Racing Industry, Ms Young.

Ms Scott was noted to be only 20 years old and to aspire to become an Apprentice Jockey. She had started the Apprenticeship process and had been actively participating in the Apprentice Academy. She would not be able to attend whilst disqualified.

The RIB submitted 12 months’ disqualification on the Methamphetamine charge and 6 weeks’ suspension on the Cannabis charge were appropriate for each Respondent. Mr Irving in his oral submission, however, stated that recognition should be given to the youth of Ms Scott by way of a small reduction in her penalty. He believed she was the youngest person to have been charged under this Rule, and a differentiation in penalty was appropriate. He added that she had already engaged with Ms Young.

Mrs Parsons addressed the Adjudicative Committee. She expressed her deep disappointment that the two Respondents were involved with drugs. She added that they were valued employees, and this was especially true of Ms Scott who, in essence, was the stable foreperson and in whom she placed a great deal of trust. She also believed that Ms Scott had a promising future ahead of her as an Apprentice Jockey.

Mr McDonald stated he had used Methamphetamine for a number of years. He said he and Ms Scott had come south from Ruakaka to get away from the drug scene when Ms Scott had found employment at the Parsons’ stable. He said he was not a horse person but was enjoying working at the stable and had learnt a lot. He had been drug-free for four months before he had lapsed and given into temptation when offered Methamphetamine by a family member. He stressed the fact that he had introduced Ms Scott to Methamphetamine and she would not have taken the drug without his influence. He asked us to take that into account when determining her penalty.

Ms Scott confirmed Mr McDonald’s comments concerning her use of Methamphetamine. She added that she was aware that the Parsons had given her a great opportunity and she was disappointed in herself for letting them down. Mrs Parson added at this juncture that it broke her heart when she learnt that Ms Scott was using.

Ms Scott said she had spoken at length on the telephone to Ms Young, and was wanting to commence a rehabilitative programme immediately. Mr McDonald also confirmed his willingness, however he was still to speak to Ms Young. Both Respondents apologised to the Adjudicative Committee for their actions. Ms Scott said that whilst she had been influenced by Mr McDonald, she was aware she had to take responsibility for her own actions.

Mr Irving confirmed to the Adjudicative Committee that the current living arrangements for the two Respondents could continue provided neither had any contact with race horses. This had been organised with the Parsons to the RIB’s satisfaction.

Decision

The Respondents have each admitted two breaches of r 656(3) in that they returned a positive result to urine tests for Methamphetamine and Cannabis that were conducted on 13 September last. They were both stood down from 19 September as a consequence. The Methamphetamine charge is clearly the most serious and the lesser penalty for the Cannabis charge will be served concurrently. An aggravating feature of Ms Scott’s offending is that she had ridden trackwork the day she was tested and returned the positives. Conversely, the positive comments in respect of Ms Scott from both Mr Irving and Mrs Parson lead us to believe that a drug free Ms Scott would again be an asset to the Industry. There is no reason why this should not be true also for Mr McDonald but his involvement with the Industry up to this time is clearly at a lesser level.

There is a clutch of cases that the Informant has identified as being relevant to penalty in this case. The penalty in each case, again after an admission of the breach, has effectively been 12 months’ disqualification with a 3-month suspension upon rehabilitation. We take guidance from these.

In its written decision in Harris the Committee stated:

Methamphetamine is a Class A drug in the spotlight for the large amount of damage and harm it causes in society. There is further concern for the possibility of contamination to horses by persons who have been using Methamphetamine. There is no place for it in the Racing Industry.

We agree and, in addition, we echo the following comment in Smith:

Serious drug use by Stablehands, Riders and others who participate in the Racing Industry, put at risk themselves and all others, as well as the reputation and integrity of the Industry. It has repeatedly been said by the RIB that it cannot be tolerated and significant penalties, to deter others and denounce the behaviour of Licensees, are required. Ms Smith has, for the moment, forfeited the privilege of being Licensed and participating in the sport. But there is reason to hope that her rehabilitation treatment may be successful.

We are similarly optimistic that treatment for both Respondents in this case will be successful. Ms Scott’s immediate engagement with Ms Young is to be commended. It is a clear but first of many positive steps that she and Mr McDonald will need to take.

We accept Mr Irving’s submission that a reduction in penalty is appropriate for Ms Scott having regard to her youth and rehabilitative potential. However, we emphasise it must be small. The health and safety implications of the Drug Rule breaches require a denunciatory sentence. The integrity of the Industry is also called into question each time a charge of this nature is proved.

We refer to r 812 which is a relatively recent insertion into the Rules of Racing. This provision states:

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.

Clearly, the purpose of r 812 is to enable the re-entry into the Industry of a Licence-Holder at a time when that person can demonstrate that they are drug free and are not a danger to themselves, other participants, and animals.

The periods of disqualification take into account the stand down periods during which the Respondents have told the Adjudicative Committee they have had no contact with race horses.

Penalty

Mr McDonald is disqualified for a period of 11 months and 2 weeks pursuant to r 803(3) on Information A15825 (the Methamphetamine charge). This commences on 1 October 2022.

We order pursuant to r 812(a) that Mr McDonald attend and complete a counselling and/or rehabilitation programme mutually agreed upon by himself and the AOD Clinician to the Racing Industry. We further order pursuant to r 812(b) that upon Mr McDonald providing evidence that he is controlled drug free and has successfully participated in a drug and alcohol programme, after he has served 8 months and 2 weeks of his disqualification (ie on 15 June 2023), that the final 3 months of this disqualification period be suspended.

In relation to Information A15826, the Cannabis charge, a suspension of six weeks is imposed, also commencing on 1 October 2022, and will be served concurrently.

There is no order as to costs, but Mr McDonald is required to pay to the RIB the sum of $187.50 being the cost of the analysis of the urine sample.

Ms Scott is disqualified for a period of 9 months and 2 weeks pursuant to r 803(3) on Information A15823 (the Methamphetamine charge). This commences on 1 October 2022.

We order pursuant to r 812(a) that Ms Scott attend and complete a counselling and/or rehabilitation programme mutually agreed upon by herself and the AOD Clinician to the Racing Industry. We further order pursuant to r 812(b) that upon Ms Scott providing evidence that she is controlled drug free and has successfully participated in a drug and alcohol programme, after she has served  6 months and 2 weeks of her disqualification (ie on 15 April 2023), that the final 3 months of this disqualification period be suspended.

In relation to Information A15824 (the Cannabis charge), a suspension of six weeks is imposed, also commencing on 1 October 2022, and will be served concurrently.

There is no order as to costs, but Ms Scott is required to pay to the RIB the sum of $187.50 being the cost of the analysis of the urine sample.

We add that all participation in programmes, counselling and testing is to be at the Respondents’ expense.  The means by which they are to be tested is to be determined by the RIB after consultation with the AOD Clinician to the Racing Industry.