Non Raceday Inquiry – Written Decision dated 12 September 2023 – Zev Meredith

Introduction

[1] This is the Penalty Decision arising from a charge lodged against Junior Driver Mr Zev James Meredith (the “Respondent”) by Racing Integrity Board (RIB) Investigator Mr R Carr (the “Applicant”) alleging that he provided a urine sample that tested positive to the Class C Controlled Drug Cannabis.

[2] The Respondent was assisted at the hearing by Mr Murray Branch.

The Charge

[3] Pursuant to Rule 1108(2) Mr M Clement, CE RIB, authorised the filing of Information No. A17974 alleging that Mr Meredith was in breach Rule 512(1) on the said date.

Information No. A17974 sets out the Particulars of the charge, namely:

That on Thursday the 20 July 2023 at the Waikato/BOP Harness Club in Cambridge, Zev James Meredith, having been required by a Racing Investigator to supply a sample of his urine in accordance with Rule 212(1)(g) and 226(2)(d) of the New Zealand Rules of Harness Racing, provided urine which upon analysis was found to contain the controlled drug Cannabis (THC), being a Class C Controlled Drug as defined in the Misuse of Drugs Act 1975 and is therefore liable to the penalty imposed pursuant to Rule 1003(1) of the rules.

[4] Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relevant to this hearing are Rule 512(1) and Rule 1003 (Penalty provisions).  These are set out below:

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 Adjudicative 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.

Rule 1003 provides:

• A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(12), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:
• a fine not exceeding $10,000; and/or
• suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
• disqualification for a period not exceeding 12 months.

Rule 514(2A) provides:

A driver whose licence is suspended under Sub-Rule (1) or (2) of this Rule may not drive at any race meeting, trial or work out until a further sample is found upon analysis to be free of both controlled drugs as defined in the Misuse of Drugs Act 1975, and illicit substances.

RIB Penalty Guide

[5] The RIB Penalty Guide (Feb 2023) provides for a 12-week suspension as the starting point for a breach of Rule 512(1).

The Plea

[6] Prior to the hearing, the Respondent confirmed that he understood the nature of the charge and that he admitted the breach.

Summary of Facts / Evidence

[7] The key salient points are as follows:

Summary of Facts

[8] The Respondent, Zev James Meredith, is the holder of a Junior Driver’s Licence issued by Harness Racing New Zealand (HRNZ). He is 21 years old and has held his Junior Driver’s Licence since 10/2019. Having previously held both a Stablehand [2018 – 2019] and Trials Driver Licences [2019 – 2020].   He is currently employed fulltime by Cambridge based Harness Trainer, Arna Donnelly of Arna Donnelly Harness Racing.

Offence Details

[9] On Thursday the 20th of July 2023, RIB Investigators conducted routine drug testing at the Waikato/Bay of Plenty Harness Club meeting held at the Cambridge Raceway.

[10] The Respondent was observed in and around the stables area at the Cambridge Raceway and was scheduled to drive in Races 3 and 8. He was one of nine Open and Junior Drivers selected for testing on the night who were listed to drive across the nine-race meeting.

[11] At 17:56 hours he was served with a Drug Testing Notification Form advising that he was required to present at The Drug Detection Agency (TDDA) van for testing between 17:30 and 21:00 hours, and at 20:45 hours, the Respondent presented himself at the TDDA van to provide a sample.

[12] All appropriate paperwork was completed, with the Respondent consenting for the sample to be packaged and sent to Environmental Science and Research Limited (ESR) for analysis.

[13] On 26 July 2023, the ESR provided a Certificate of Analysis and confirmed that the urine sample provided by the Respondent was positive to Cannabis at a THC level of 30ng/mL. Cannabis is a Class C Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[14] Later on, 26 July 2023 the Respondent was notified verbally by phone of the positive result and advised that he would be issued a stand down notice as a result. The notice was subsequently served in person at 13:00 hours on 27 July 2023.

[15] When spoken to regarding the result, the Respondent admitted to having smoked Cannabis last on Sunday 9 July 2023. Stating “I smoked half a joint at home.” He alleges that he had not smoked Cannabis since March 2021, when he was previously charged by the RIB for a positive result for Cannabis, post routine drug testing of Drivers at the Franklin Park Training Centre, Pukekohe on 29 March 2021.

[16] HRNZ judicial records confirm that the Respondent has one previous serious racing offence. This being in relation to a positive result for cannabis [110ng/ml] referred to above. The penalty imposed was a six week suspension (April/May 2021). (While the Summary of Facts has recorded a 6 week suspension, it was in fact a 4 week suspension that was imposed)

Submissions by The Respondent

[17] Mr Meredith agreed with the Summary of Facts as submitted by the RIB.

Mr Meredith’s Counsel (Mr Branch) queried Mr Carr as to the similarities and/or differences between a License Holder who may have alcohol in their system, yet not in breach of the Rule, vs a person who had Cannabis in their system, which was an automatic breach of the Rule (due to the illicit nature of the drug). Mr Branch’s supposition was that, as the recorded level of Cannabis was very low, this could be seen as a mitigating factor, or conversely, a very high reading could be considered an aggravating factor. Mr Carr did not contest this rationale.

Submissions as to Penalty (RIB)

The Applicant, Mr Carr provided written submissions.  He highlighted key points during the course of the hearing and submitted that:

[18] The reason for testing was due to the need to uphold the Health and Safety principles for all participants.

[19] The Respondent has admitted the Breach against Rule 512(1).

[20] All Harness Drivers are aware the testing is conducted for two reasons, first the need to maintain a healthy and safe workplace and secondly to maintain the integrity of the Industry.

[21] Historical penalties for breaches of the Industry drug laws show some divergence. The type of drug, the situation, and the amount of the drug in the system add to this divergence.

[22] RIB records indicate that the Respondent has one previous breach of Rule 512(1). This was heard on the 10th of May 2021 and resulted in his Junior Driver’s Licence being suspended for 4 weeks.

Penalty Sought by RIB

[23] It is submitted by the RIB that a 12-week suspension of the Respondent’s Junior Driver’s Licence (backdated to when he was ‘stood down’) be imposed.  Also, the costs of the ESR analysis of $187.50 (to the RIB) are sought.

Offending

[24] The details of the Respondent’s offending are contained in the Summary of Facts.

Sentencing Principles

[25] The RIB submits that the following four principles of sentencing apply in this case.

• 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 RIB for the type of behaviour in question.
• The need to rehabilitate the offender should be taken into account.

Precedent Cases

[26] Recent penalties for Harness Drivers positive to the Class C Controlled Drug Cannabis are submitted (below) for the consideration of the Adjudicative Committee.

RIB v J CRAWFORD (15.11.2022) – Junior Driver – Level 55ng/mL; Six-weeks suspension (back dated) and costs of $187.50 for sample analysis.

RIU v Z MEREDITH (10.05.2021) – Junior Driver – Four-week suspension and costs of $150. Required to provide evidence of a clear drug test with 2 weeks of the suspension concluding.

[27] Recent penalties for NZTR Track Riders and Jockeys positive to the Class C Controlled Drug Cannabis are as below.

RIB v E WENN (12.01.2023) – Licenced Stablehand – Level >500ng/mL; six-weeks suspension and costs of $187.50.

RIB v C JONES (28.08.2022) – Apprentice Jockey – Level 190ng/mL; eight-weeks suspension and costs of $187.50. Several aggravating features present in this case.

RIB v T THORNTON (22.08.2022) – Jockey – Level 110ng/mL; six-weeks suspension (5 weeks on provision of negative drug test) and costs of $187.50.

RIB v R WARD (10.08.2022) – Stablehand [non-riding] – Level 100ng/mL; six-weeks suspension with one week stayed subject to the Respondent meeting certain terms and conditions, and costs of $187.50.

RIB v R AUKETT (14.06.2022) – Track Work Rider – Level >230 ng/mL; six-weeks suspension and costs of $187.50.

Aggravating Factors

[28] The Respondent has previously breached this, Rule.  He therefore understands that Cannabis is a Class C Controlled Drug, and the use is prohibited under the Rules.

[29] The Respondent has admitted to smoking Cannabis in the past, when questioned regarding the positive result he alleges that he last smoked “half a joint” at home on Sunday the 9th of July 2023.

[30] This is the Respondent’s 2nd Breach of Rule 512(1) within the last 28 months of providing a sample found on analysis to contain a controlled drug.

Mitigating Factors

[31] The Respondent entered an early guilty plea and now accepts full responsibility for his actions.

[32] He has been compliant and cooperative with all RIB staff throughout the process.

[33] The Respondent was referred by RIB to the Salvation Army – AOD Clinician to NZ Racing Industry for an assessment and assistance, which he has accepted and engaged.

Submissions as to Penalty (Respondent)

In relation to penalty on behalf of the Respondent, Mr Branch submitted:

[34] The Respondent sought further counselling by his own volition, in addition to that which has been supplied by the Salvation Army.

[35] A letter of reference was provided by his employer Arna Donnelly, which outlined his character, potential and the environment that he works.

[36] In response to a question from the Adjudicative Committee, Mr Meredith advised that he had a good support network around him and would lean on that for assistance once the counselling had abated.

[37] Mr Branch submitted that based on precedent cases and discounts for mitigation applied, that the penalty should be closer to 8 weeks than 12 weeks. (Mr Branch specifically referred to the Delany Decision, which he said provided a 2 week – 25% reduction – on the starting point from 8 weeks plus a further week, resulting in a 5 week penalty.) Mr Branch put forward that the fact this was a 2nd breach, it shouldn’t be seen as an aggravating factor as the Penalty Guideline captured this (2nd breach has a higher starting point).

[38] Mr Meredith outlined his loss of earnings during the stand-down period – he calculated these at approximately $3000.

[39] Mr Meredith said that previous incidents in the Harness Industry had created some stress for him and had seen him, on occasions, fall into bad habits.  He said he was now in a good place and able to deal with these stresses through a combination of his support and counselling.

Reasons for Penalty

[40] The RIB Penalty Guide for Harness Racing Offences recommends a 12-week suspension as the starting point for a 2nd breach of Rule 512(1).  The Guide assumes that the severity of the breach is mid-range. This provides a degree of flexibility for the Adjudicative Committee to make some adjustments from the 12-week starting point based on mitigating and aggravating factors.  On this basis, the Adjudicative Committee has considered the level recorded for this particular breach. While the Adjudicative Committee acknowledges that a recorded level of 30ng/ml does not necessarily constitute a particular level of impairment, the level recorded was only just above the minimum level that is tested, and in fact the lowest recorded level on record, that the Adjudicative Committee could find. In the Adjudicative Committee’s view, this level is at the very lowest end of the spectrum, and sees this as a mitigating factor.

[41] Having considered the aforementioned mitigating factor, Mr Meredith’s genuine remorse, admission of the breach, co-operative manner and engagement in the Salvation Army programme, a 3 week reduction to the penalty is applied.

[42] The Adjudicative Committee was particularly impressed with Mr Meredith’s acknowledgement of his triggers and independent engagement with an additional counselling service. In support of a rehabilitative approach, Clause 28A of the Fifth Schedule of the Rules empowers an Adjudicative Committee to defer any decision on sanction or penalty, or any part thereof for any reason including …. Rehabilitative measures (refer clauses 28A (3) and (4)). Consequently, in accordance with this Clause, the Adjudicative Committee has judged that this is an entirely appropriate case for it to suspend or defer ‘part’ of the penalty imposed on the Respondent, subject to his submission of a clear drug test prior to recommencing ‘safety sensitive activities’. Under this provision, the Adjudicative Committee ‘suspends’ one week of what would have been a 9 week suspension, and arrives at an end point of 8 weeks suspension, subject to Mr Meredith’s submission of a clear drug test result – refer paragraph 45 for further details on conditions that must be met.

Penalty

[43] Therefore, in the final result, having carefully considered all the material that has been placed before it, the Adjudicative Committee imposes the following penalty and makes the following orders.

[44] Mr Meredith is suspended from holding a Junior Driver’s Licence for a period of 8 weeks. The Adjudicative Committee has taken into account time already spent on stand down and therefore, this suspension is backdated to commence on 27 July 2023 (being the date the Stand Down Notice was served), and remains in force up to and including, Wednesday 21 September 2023 (8 weeks).

[45] This is conditional upon Mr Meredith providing evidence to the RIB, of a clear drug test at his own expense, before 19 September 2023.

Costs  

[46] Costs of $187.50, being the cost of the sample analysis by the ESR, are awarded in favour of the Applicant and are payable to the RIB.

[47] Although this matter was heard on a Non-Raceday, and some RIB Adjudicative Committee costs have been incurred, on this occasion, the Adjudicative Committee has waived those costs.