Non-Raceday Inquiry – Written Decision dated 14 June 2022 – Reon Aukett

Charge

Investigator submitting the charge: Georgina Murrow

On the 24th of May 2022, at Ruakaka Racecourse, Mr R Aukett was required by a Racing Investigator to supply a sample of urine in accordance with Rule 656(3) of the NZTR Rules of Racing. He provided a sample which upon analysis was found to contain the controlled drug THC (Cannabis) as defined in the Misuse of Drugs Act 1975. This was recorded at a level of Positive – THC Acid >230 ng/mL = μg/L.

The level recorded for this sample determines a breach of Rule 656(3) therefore Mr Aukett is liable to the penalty or penalties which may be imposed pursuant to Rule 803 of the said Rules.

Rule 656(3)

A Rider, or any other Licence Holder who has carried out, is carrying out, or is likely to carry out a Safety Sensitive Activity at a Racecourse, Training Facility or Trainers Premises, who, having been required by a Stipendiary Steward or 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 or other illicit substance or diuretic and/or its metabolites, artifacts, or isomers.

Penalty Provisions

Rule 803(3)

Subject to Rule 803(2)(b), where any Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainers Premises commits or is deemed to have committed a breach of these Rules related to drugs or alcohol and a penalty is not provided elsewhere in these Rules for that breach, that Licenceholder committing the breach may :

(a) Be disqualified for a period not exceeding 5 years; and/or

(b) Be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and/or

(c) Be fined a sum not exceeding $50,000.

Mr Aukett attended the hearing and was supported by his employer Mr Terry Powell. Mr Aukett acknowledged that he understood the nature of the charge and the Rule and that he admitted the breach.

Mr Aukett confirmed that all the relevant documents from the RIB had been disclosed to him; and that he accepted the contents of the documents and consented to them being admitted as evidence.

The proposed procedure for this hearing was explained to Mr Aukett and he had no concerns or objections.

Summary of Facts provided by RIB

The Respondent in this matter, Reon Aukett is a Class B Miscellaneous (Track-rider) Licenced person under the Rules of New Zealand Thoroughbred Racing.

Circumstances

On Tuesday the 24th of May 2022, Mr Aukett was riding trackwork at the Ruakaka Racecourse.

He was approached by an RIB Investigator and required to undertake a drug test.

The sample was forwarded to ESR for analysis.

On the 27th of May 2022, ESR confirmed that the urine sample provided by Mr Aukett was positive to Cannabis at a THC Acid level of >230 ng/mL.

The stand down order was emailed to Mr Aukett on the 30th of May 2022.

Mr  Aukett was compliant and admitted the facts as outlined.

Submissions by the Respondent

Mr Aukett commenced by saying that prior to his positive test he had been attending a funeral in the Auckland area. He said that there were a lot of old friends there and he took some time out to socialize with them consuming alcohol. He said that at some point during the day/evening a “joint” was passed around and he had a couple of puffs and that the prior consumption of alcohol may have impaired his judgement. He acknowledged that he had made an error and was remorseful of his actions.

The Adjudicative Committee queried Mr Aukett as to a prior Cannabis breach (2010) in the context as to whether he was a regular user. Mr Aukett said that following his breach in 2010 he had sought counselling and had undergone a rehabilitation programme.

The Adjudicative Committee asked Mr Aukett if he had been tested within the Racing Industry since the breach in 2010, he confirmed that he had not but advised that he had been tested at his workplace in Australia and was clean.

Mr Powell (Mr Aukett’s employer) submitted that Mr Aukett was a great and very valuable employee. He said that his wife was a doctor and that he actually saw their role with Mr Aukett as that of mentors and suggested that they were more akin to parents than employers. He said that Mr Aukett had been very honest with them about some of the challenges he had faced in his life and together they were working through this and had seen great personal growth in Mr Aukett.

Informant : Submissions on Penalty

1.  Introduction

• The Respondent Reon Aukett is a Miscellaneous Class B (Trackwork Rider) Licence Holder under the Rules of New Zealand Thoroughbred Racing (NZTR).
• He is a freelance Trackwork Rider.
• Mr Aukett has admitted a breach of the Rules in relation to the positive drug test returned at Ruakaka on the 24th of May 2022.

2. Background

• New Zealand Thoroughbred Racing commenced drug testing Industry participants in 1995 and since then there has been growing awareness that there is an absolute obligation on Riders to present themselves free from the influences of drugs.
• All Riders 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.

3. Offending

• Mr Aukett was riding at the Ruakaka raceway on the 24th of May 2022, while the drug THC (Cannabis – level 230ng/mL) was within his body.
• The details of Mr Aukett’s offending are contained in the Racing Integrity Board’s Summary of Facts.
• The ESR reported level of THC was (230ng/mL). The minimum level tested is 15ng/mL and a high level considered to be over 1000ng/mL.
• THC (Cannabis) is a Class C controlled drug within the meaning of the Misuse of Drugs Act 1975.

4. Penalty Provisions

• The penalty provisions for this matter are contained under Rule 803(3):
  Subject to Rule 803(2)(b), where any Licence holder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises commits or is deemed to have committed a breach of these Rules related to drugs or alcohol and a penalty is not provided elsewhere in these Rules for that breach, that Licence holder committing the breach may:
  (a) be disqualified for a period not exceeding 5 years; and/or
  (b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and/or
  (c) be fined a sum not exceeding $50,000,

5. Sentencing Principles

• The four principles of sentencing can be summarised briefly:
• Penalties are designed to punish the offender for his / her wrong doing. 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.
• All four principles apply in this matter.

6. Precedents

• The following are decisions involving Track-work Riders positive to THC Cannabis:
•  RIB v B HERD (06.05.2022) – Level 130ng/mL; seven weeks suspension and costs of $187.50.
•  RIB v A SCOTT (04.03.2022) –level 500ng/mL; nine weeks suspension and costs of $187.50.
•  RIU v JL ROBINSON (27.06.18) – level >300ng/mL; six-week suspension and $187.50 costs

7. Aggravating Factors

• Mr Aukett understands the use of Cannabis is prohibited under the Rules.

8. Mitigating Factors

• Mr Aukett entered an early guilty plea.
• He has been compliant, cooperative, and respectful throughout the process.

9. Conclusion

• The RIB seeks a 6-week suspension of Mr Auckett’s Track Rider’s Licence (backdated to 01.06.2022 when he was ‘stood down’) and costs of the ESR analysis of $187.50.

Respondent : Submissions of Penalty

Mr Aukett had nothing to offer in terms of penalty submissions.

Mr Powell said that any suspension of Mr Aukett’s license would have a financial burden on his training operation as he would need to pay for an alternative Rider. He said that as far as Track Riders were considered that Mr Aukett was one of the best in the area and in high demand. He also said that he would continue to support Mr Aukett through any suspension and maintain his employment.

Reasons for Penalty

As Mr Aukett admitted the breach, the charge was proved.

The Adjudicative Committee considered all evidence put before it both in written and oral submissions this is detailed above.

The RIB Penalty Guide does not provide a starting point for breaches of this Rule. It makes reference to the penalties being ‘fact dependent’. It is therefore incumbent on Adjudicative Committees to take each set of circumstances, relative readings and any past breaches of respondents into consideration when assessing appropriate penalties.

Clearly penalties imposed on other Industry participants for similar breaches are relevant.

Mr Aukett has been co-operative throughout this process. He was very honest in his submissions and was clearly remorseful for the position he had put himself and his employer in.

The support in which Mr and Mrs Powell provide to Mr Aukett needs to be acknowledged, they clearly have his best interest at heart.

The Adjudicative Committee had regard for Mr Aukett’s previous breach in relation to this Rule in 2010, but given the period of time that had elapsed since this breach and historical precedent, determined that this would not result in an uplift.

Penalty

After taking all of the above matters into consideration the Adjudicative Committee imposed a period of suspension on Mr Aukett’s Track Riders license. This suspension is to begin on 31 May 2022, being the day following the notice to withdraw his Track Rider’s Licence and will conclude on 11 July 2022.

This suspension will therefore encompass 6 weeks.

Mr Aukett is further ordered to pay to the RIB the cost of the sample analysis, being $187.50.

The RIB have made no application for further costs associated with the hearing.

Adam Smith

Chairman