Non Raceday Inquiry – Written Decision dated 12 April 2024 – Anna Hewitson

The Respondent, Ms Anna Hewitson, is charged under r 656(3) with providing a urine sample that contained Cannabis.

The charge reads: “On the 15th of March 2024, at Ascot Park Racecourse Invercargill, having been required by a Racing Investigator to supply a sample of your urine in accordance with Rule 656(3) of the NZTR Rules of Racing, you provided a sample which upon analysis was found to contain the controlled drug THC (Cannabis) as defined in the Misuse of Drugs Act 1975.”

Ms Hewitson is a Class B Licensed Trainer under the Rules of New Zealand Thoroughbred Racing. She is 39 years old and has held this Licence since September 2015, training her horses from leased stables at Ascot Park, Invercargill.

The Respondent at a hearing at Ascot Park on 7 April last, admitted a breach of r 656(3) (Information A4843). The Adjudicative Committee found this charge to be proved and informed the Respondent of the outcome of the hearing, the penalty 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 Racecourse, 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.

Cannabis is a Class C, controlled drug.

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

Summary of Facts

On Friday 15 March 2024, RIB Staff carried out routine alcohol breath and drug testing of Track Riders at the Ascot Park Racecourse in Invercargill.

Ms Hewitson was one of 14 Riders selected to be tested. She was approached by an RIB Investigator and given a Notice at 7.22am requiring that she provide a urine sample to The Drug Detection Agency before 10.15am. She accepted the Notice and understood what was required.

Ms Hewitson indicated that she would fail the test due to having consumed Cannabis the prior weekend.

The sample as subsequently provided, returned a non-negative result for the presence of Cannabis. Ms Hewitson was stood down from carrying out any track riding from that day.

All appropriate paperwork was completed with the Respondent consenting for the sample to be packaged and sent to the ESR for confirmatory analysis.

On 20 March 2024, ESR confirmed that the urine sample provided by Ms Hewitson was positive to Cannabis at a THC Acid level of 89 ng/mL.

A Notice was given to Ms Hewitson on 21 March 2024 advising that her Trainer’s Licence had been withdrawn with effect from that date.

Decision

The Respondent has admitted the charge. It is found to be proved.

Informant’s Penalty Submissions

The Informant, by way of background, stated that NZTR commenced drug testing Industry participants in 1995 and since then, there has been a growing awareness that there is an absolute obligation on Licensed participants to present themselves free from the influences of drugs.

All Industry participants are aware of the policy and the consequences should they not comply. The testing is conducted to maintain a safe and healthy workplace and to maintain the integrity of the Industry.

Historical penalties for breaches of the Industry drug laws show some divergence dependent on the type of drug, the amount of the drug in the system and additional circumstances.

The ESR reported level of THC (>89 ng/mL) is unhelpful in determining the extent of use of Cannabis by Ms Hewitson. However, the minimum level tested is 15ng/mL and a high level considered to be over 1000ng/mL, so this result is at the low end of readings.

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.

The Informant identified recent Decisions involving Track-work Riders returning a positive test to THC Cannabis:

• RIB v Wenn (12 January 2023) – level >500 ng/mL; six weeks’ suspension and costs of $187.50.
• RIB v Aukett (14 June 2022) – level >230ng/mL; six weeks’ suspension and costs of $187.50.
• RIU v Robinson (27 June 2018) – level >300ng/mL; six weeks’ suspension and $187.50 costs
• RIB v Thornton (22 August 2022) Rider Class A ‑ level >110ng/mL; six weeks’ suspension with one week stayed subject to Respondent meeting certain terms and conditions (clear test), and costs of $187.50.

And with respect to Licensed Thoroughbred Trainers, comparable cases were:

• RIU v Bishop (23 November 2016) – level >30ng/mL; six weeks’ suspension and $187.50.
• RIB v Cole (18 January 2024) – level >150ng/mL; eight weeks’ suspension with two weeks stayed upon provision of a clear drug result.

Aggravating factors were stated by the RIB to be: Ms Hewitson understands the use of Cannabis is prohibited under the Rules; as well as being a Track Rider, she also holds a Class B (Permit to Train) Licence which adds the responsibility being ‘of good character’ and an expectation to maintain a higher standard of behaviour in relation to her employees, Owners, peers and other Track Riders; she was offered counselling services following the breach, but declined the option.

Mitigating factors were: Ms Hewitson entered an early guilty plea; the level of Cannabis returned is considered to be at a low threshold, indicative of infrequent use and several days since a small quantity of Cannabis was consumed; she has been compliant, cooperative, and respectful throughout the process, and readily admitted to Cannabis consumption as soon as being issued the Notice to provide a sample; and she has no prior history of offending against any of the Rules of Racing.

Mr Meulenbroek added orally that there was no hint of deception by the Respondent or that she was visibly impaired on the day. She had been upfront, stating prior to the testing that she was going to fail.

The RIB sought a six-week suspension of Ms Hewitson’s Class B Trainer’s Licence backdated to 21 March 2024, and costs of the ESR analysis of $187.50.

Respondent’s Penalty Submissions

Ms Beazer appeared as a lay advocate and provided a written penalty submission on behalf of Ms Hewitson and both she and Ms Hewitson addressed the Adjudicative Committee.

Ms Beazer agreed that the recent cases identified by the Informant provided a guide or reference point for the Adjudicative Committee in this case and accepted the Informant’s submission that a backdated six-week suspension was appropriate. She further submitted, there were no aggravating factors pointing to an increased penalty or for there to be a need for any conditions to be attached to the penalty.

Ms Beazer emphasised that Ms Hewitson’s declining counselling was “objectively reasonable” in that Ms Hewitson was an infrequent Cannabis user and was not dependent on the drug and was not in need of counselling to abstain. Ms Beazer submitted that the low level of THC was consistent both with Ms Hewitson’s claim and that she had consumed a low level of Cannabis prior to being tested.

Ms Beazer concluded her submission by stating full credit should be given to the fact that Ms Hewitson had demonstrated she had accepted responsibility and accountability for her actions once the breach of r 656(3) was established. She had stood down as the Racing Manager and had relinquished her ownership share in the syndicates that owned the horses she was training prior to being stood down.

Ms Hewitson said she was not a regular user of Cannabis and saw no need to commence a rehabilitative programme or to undertake counselling. She apologised to the Adjudicative Committee for her actions. She said she had partaken in a joint at a social gathering.  She had let down a number of people and was embarrassed by her actions. She reiterated the fact that she had co-operated fully with the RIB investigation and had taken immediate steps to remove herself from the ownership of the two horses. She appreciated the assistance of a local Trainer who had allowed the horses to enter his stable. She had leased stables at Ascot Park since 2015. She only rode her two horses in trackwork and was only a hobby Trainer now.

When questioned by the Adjudicative Committee, she said she had been tested once before; she thought it was about five years ago and she had given a negative sample. She concluded her oral submission by commenting that “horses are my life” and that the Adjudicative Committee could have confidence in her.

Decision as to Penalty

The Respondent has admitted a breach of r 656(3) in that she has returned a positive result to a urine test for Cannabis which was conducted on 15 March last. She was stood down from trackwork riding that day and her Class B Trainer’s Licence was withdrawn from 21 March as a consequence. An aggravating feature of Ms Hewitson’s offending, is that she was riding trackwork the day she was tested and returned the positive. Mitigating factors are the level of Cannabis detected is at a low level, which supports her claim of infrequent use and consumption of a small quantity the weekend before testing; she has admitted the breach, is remorseful, and has co-operated fully with the RIB investigation, including readily admitting to having used Cannabis upon being issued the Notice to provide a sample; and she has no previous breach of any of the Rules of Racing.

The health and safety implications of the Drug Rule breaches require a denunciatory sentence. The integrity of the Industry is called into question each time a charge of this nature is proved.

Both the Informant and the Respondent agree that a penalty of six weeks’ suspension is appropriate. And that is the penalty that the Adjudicative Committee imposes. This penalty is consistent with the clutch of comparable cases that the Informant has identified as being relevant in this case and from which the Adjudicative Committee can take guidance. The Adjudicative Committee sees no need to impose a more severe penalty, although it express its concern that such an experienced Industry participant as Ms Hewitson, was prepared to ride trackwork knowing she had recently smoked Cannabis and in so doing, was placing herself and other Riders and horses at risk.

The Adjudicative Committee contemplated making an order under r 812 which is a relatively recent insertion into the Rules of Racing. This provision enables an Adjudicative Committee to require the person committing the breach to complete counselling or rehabilitation and/or for the Adjudicative Committee to stay, in whole or in part, the operation of any penalty. In the event of a failure to comply with 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 no longer a danger to themselves, other participants, and the horses concerned. Ms Hewitson stated that she was willing to provide a clear sample, but reiterated she was not a regular Cannabis user and did not believe that she needed counselling.

The Adjudicative Committee adjourned to consider whether it would invoke r 812, but it has given weight to Ms Hewitson’s assurance she does not have a Cannabis problem or any dependency issues, and that the embarrassment of being charged and having to inform her Owners and other Industry participants has been a salutary lesson. The Adjudicative Committee believes this is such that it can refrain from a r 812 order on this occasion. The Adjudicative Committee has some confidence that Ms Hewitson is clearly aware that she is on the RIB Investigation radar should she feel similarly inclined to indulge on a social occasion.

Ms Hewitson’s Class B Trainer’s Licence under the Rules of NZTR is suspended for a period of six weeks pursuant to r 803(3). This commences on the day her Class B Trainer’s Licence was withdrawn down, viz 21 March 2024, and is up to and including 3 May 2024.

The matter was heard prior to racing. There is no order as to costs, but Ms Hewitson is required to pay to the RIB the sum of $187.50, being the cost of the analysis of the urine sample.