Non Raceday Inquiry – Written Decision dated 21 August 2023 – Owen Gillies

Introduction

[1] This penalty hearing was heard at Alexandra Park on 17 August 2023.  It arises from an Information (No. A18512) lodged against Licensed Public Trainer and Graduation Driver Mr Owen Gillies (the “Respondent”) by Racing Integrity Board (RIB) Investigator Ms C Fox (the “Applicant”).

[2] Pursuant to Rule 1108 (2) Mr M Clement, CE: RIB authorised the filing of Information No. A18512 alleging that Mr Gillies was in breach of Rule 512(1) on the said date.

The Charge

[3] The particulars of the charge outlined in Information A18512 are that:

On Thursday the 29 June 2023 at  Auckland Trotting Club, Alexandra Park,  having been required by a Racing Investigator to supply a sample of your urine in accordance with Rule 212(1)(g) and 226(2)(d) of the  New Zealand Rules of Harness Racing, you provided urine which upon analysis was found to contain the controlled drugs Methamphetamine, being a Class A Controlled Drug and Cannabis (THC), being a Class C Controlled Drug as defined in the Misuse of Drugs Act 1975 and that you are liable to the penalty imposed pursuant to Rule 1003(1) of the Rules. Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relevant to this hearing are Rule 512(1) and Rule 1003 (Penalty Provisions).

[4] Prior to the hearing, the Respondent advised the Adjudicative Committee that he admitted the breach of the Rule. As a consequence, the charge is deemed proved (Rule 1003 applies).

The Rules

[5] The Rules relevant to the charge and penalty are as follows:

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 Judicial 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.

The Rules state that a charge shall commence by the filing of an Information, in this case Information No. A18512 refers.

Rule 1106(1)(b) provides:

An Information may: …(b) allege one or more breach of these Rules.

Accordingly, Information A18512 encompasses two separate breaches of Rule 512(1).

Penalty Provisions

[6] The relevant penalty provisions are:

Rule 1003 provides:

(1) 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) A fine not exceeding $10,000; and/or

(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c) disqualification for a period not exceeding 12 months.

Rules 1301 to 1304 set out the consequences of a disqualification and or suspension.

Standard of Proof

[7] The standard of proof in proceedings before an Adjudicative Committee shall be the balance of probabilities.

Summary of Facts / Evidence

Ms Fox presented an agreed Summary of Facts. The key salient points are as follows:

[8] On Thursday the 29 June 2023, Investigators from the Racing Integrity Board (RIB) conducted routine drug testing at the ATC ‘Final June Night’ meeting, held at the Auckland Trotting Club, Alexandra Park.

[9] The Respondent was scheduled to drive in Race 1, 4 and 8 and was one of 15 people selected for testing who were performing a ‘safety sensitive activity’ that day.

[10] The Respondent was served with a Drug Testing Notification Form, during the early evening, advising that he was required to present at the Drug Detection Agency (TDDA) van for testing and after several hours, at 9:18pm he presented himself at the TDDA van and provided a urine sample for testing.

[11] On Thursday 6 July 2023, ESR provided a Certificate of Analysis and confirmed that the sample provided by the Respondent was positive to both Methamphetamine and Cannabis at a THC level of 39ng/mL.

[12] The urinary creatine level of the sample was found to be 155 milligrams per litre. This is less than the recommended 200 milligrams per litre, indicating that the sample was dilute.

[13] Methamphetamine is a Class A Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[14] Cannabis is a Class C Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[15] On 6 July 2023 the Respondent was advised of the positive result and later that day he was issued a stand down notice via email.

[16] When spoken to regarding the presence of Methamphetamine in the sample, the Respondent advised that he was unsure how the drug would have gotten into his system as he had not smoked Methamphetamine in approximately a year.

[17] The Respondent admitted to smoking Cannabis and stated that he did so for pain management purposes. He further stated that, as he purchases Cannabis from a drug dealer it was possible that the Cannabis was unknowingly laced with Methamphetamine.

Note: During the course of the hearing the Respondent withdraw his explanation and admitted that he had used voluntarily used both Cannabis and Methamphetamine and this is discussed further in the body of this Decision.

[18] The Respondent has one prior breach of the Rules for Misconduct in 2013.

Submissions as to Penalty (RIB)

In her written penalty submissions Ms Fox submitted that:

[19] The Respondent is the holder of both a Public Trainer and Graduation Drivers Licence as issued by Harness Racing New Zealand (HRNZ).

[20] He has been Licenced as a Graduation Driver since 2018, having previously been granted a Junior Drivers Licence in 2006 and is currently based at the Franklin Park Trotting Track in the Pukekohe area.

Background Information

[21] The Respondent has admitted the Breach against Rule 512(1) NZHR, in relation to the positive drug test relating to the presence of both Methamphetamine and THC (Cannabis).

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

[23] 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 adds to this divergence.

[24] RIB records indicate that the Respondent has not previously been tested.

[25] It is submitted that the RIB seeks a 12-month disqualification on the Methamphetamine Charge and a concurrent 6-week suspension on the Cannabis Charge.

[26] The RIB also seeks costs in relation to the ESR analysis which amounts to $187.50 (payable to the RIB).

Offending

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

[28] The ESR reported level of THC (39/mL) is unhelpful in determining the use of Cannabis by the Respondent. The minimum level tested is 15ng/mL and a high level considered to be over 1000ng/mL.

Sentencing Principles

[29] The four principles of sentencing can 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 RIB for the type of behaviour in question.
• The need to rehabilitate the offender should be taken into account.

[30] The RIB submits that all four principles apply in this matter.

Precedent Cases

[31] There are no recent penalties for Harness Drivers having returned a positive drug test to the Class A Controlled Drug Methamphetamine.

[32] Recent penalties for Harness Drivers positive to the Class C Controlled Drug Cannabis are as outlined below:

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.

[33] Recent penalties for NZTR Track Riders and Jockeys positive to the Class A Controlled Drug Methamphetamine are as outlined below:

RIB v T Moki (February 2023) – Class D Jockey – Positive to Methamphetamine; 12-months disqualification and costs of $187.50 for sample analysis.

RIB v K McDonald & D Scott (October 2022) – McDonald (Stable Hand) and Scott (Trackwork Rider) – Positive to Methamphetamine and Cannabis — McDonald disqualified for 11 months and 2 weeks; Scott disqualified for 9 months and 2 weeks (due to her youth and rehabilitative potential), with a three-month reduction offered to both upon completing of a drug and alcohol programme.

RIB v J Smith (August 2022) – Stable Hand – Positive to Methamphetamine; disqualified for 12 months, with a 3-month suspension upon successfully completing rehabilitation treatment with the Salvation Army.

In its Written Decision in this case, the Adjudicative Committee commented:

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.

RIB v Eriha (June 2022) – Unlicensed Trackwork Rider – Positive to Methamphetamine and Cannabis; 12-month disqualification on the Methamphetamine charge with a 3-month suspension upon completion of a drug rehabilitation course; 6-week suspension on the Cannabis charge, to be served concurrently.

RIU v Harris (June 2021) – Trackwork Rider – Positive to Methamphetamine; 11-month disqualification with a 3-month suspension upon completion of a drug rehabilitation course.

In its Written Decision in this case, the Judicial Committee commented:

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.

Aggravating Factors

[34] The Respondent understands that the use of both Methamphetamine and THC (Cannabis) is prohibited under the Rules and has admitted that he smokes Cannabis for pain management purposes.

[35] In relation to the presence of Methamphetamine, the Respondent originally admitted to using Methamphetamine in the past but stated that he had not smoked it in the last year advising that the positive result may instead have come from Cannabis purchased from a drug dealer that was unknowingly laced with Methamphetamine. As identified at paragraph [17] he withdrew this explanation and admitted having used Methamphetamine.

[36] The urinary creatine level of the sample provided by the Respondent was found to be 155 milligrams per litre. This is less than the recommended 200 milligrams per litre, indicating that the sample was dilute.

[37] The Respondent also waited until the last possible moment to provide a sample, presenting at the TDDA van at 9pm when the technicians were due to leave.

Mitigating Factors

[38] The Respondent entered an early guilty plea and has now accepted full responsibility for his actions.  Despite his initial denial, he admits having used Methamphetamine proximate to being tested.

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

[40] He has no previous drug related charges before the Adjudicative Committee, however he has one prior conviction for Misconduct in 2013.

Conclusion

[41] The RIB seeks a 12-month Disqualification on the Methamphetamine Charge and a concurrent 6-week Suspension on the Cannabis Charge. The cost of the ESR analysis of $187.50 (to the RIB) is also sought.

Note: During the course of the hearing, Ms Fox advised that she has referred the Respondent to Racing Drug and Alcohol Clinician, Ms D Young, to Mr Gillies.  She said that Ms Young is available to provide some ongoing support if required.

Submissions as to Penalty (Respondent)

In relation to his offending and penalty, the Respondent Mr Gillies submitted:

[42] That he now admits having used Methamphetamine recently and accepts the drug test result.  He said that he was depressed at the time and used Methamphetamine to get through a difficult period.  He also confirmed that he was still using Cannabis but acknowledged that it is not for any pain management purposes.

[43] The Respondent provided a letter from his Doctor which indicates that he is seeking treatment for his use and dependence of illicit substances.  He is open to seeking further treatment as directed by his Doctor. He also provided a reference from his former employer Mr D Balle, which the Adjudicative Committee has considered.

Mr Jim Cole

[44] Mr Jim Cole provided a reference letter in support of the Respondent.  He also attended the hearing.  In his letter, and verbally, Mr Cole set out a number of personal issues concerning the Respondent, which the Adjudicative Committee has noted, but not included fully, in its Decision, for privacy reasons.  Key points include:

• We are seeking a suspension of Owen’s Totalisator Licence. Training Horses is Owen’s source of income, and we request that he be allowed to continue to train his young team / be able to drive them at the trials and workouts. 
• Mr Cole stated that the Respondent “has undergone a traumatic time of late…. putting him under stress”. He said that “there would be very few people at the Pukekohe track that have not asked Owen for assistance at some time or another.  His only fault is that he tries to help too many people for little reward……”. He further indicated that he “is on the road to recovery and should be encouraged to keep working on his health. And given every opportunity to fulfil his passion of harness racing”.
• Mr Cole referred to the Brownlee case, which was a historical Methamphetamine and Cannabis positive in 2011 involving a Harness Driver which resulted in a 12 month suspension.
• Mr Cole concluded “I have written this as I have every confidence in him…I have been in Harness Racing a lot longer than most, and do not judge a person on one mistake in life”.

Decision – Penalty and Reasons

[45] This Decision deals with one Information (No. A18512) alleging two breaches in relation to Rule 512(1).  As per Rule 1106(1)(b) An Information may: …(b) allege one or more breaches of these Rules. Consequently, in this case the Information alleges that the Respondent twice breached Rule 512(1) because the analysis result of the urine sample that he provided identified two controlled drugs as defined by the Misuse of Drugs Act 1975, namely (1) the Class C Drug Cannabis; and (2) the Class A Drug Methamphetamine.

[46] The RIB has sought separate penalties for each Class of Drug.  Firstly, a period of 12 months disqualification in relation to the Methamphetamine element of the Charge; and secondly, a six week suspension (to be served concurrently) in relation to the Cannabis element of the Charge.

[47] Clearly, the two drug categories are treated separately to reflect the fact that Methamphetamine use must be treated more seriously that Cannabis use, albeit the use of both drug types must be denounced. Particularly so when its use impacts or has the potential to impact on safety sensitive activities such as Harness Race Driving.   The use of Methamphetamine, a Class A Drug, is the more serious and this is reflected in the penalty that the Adjudicative Committee has imposed.  It also reflects the Industry’s resolve to rid racing of serious drug use and abuse.

Penalty

[48] Therefore, in relation to the Methamphetamine element, the Adjudicative Committee disqualifies the Respondent from holding or obtaining a Licence for a period 9 months.  In relation to the Cannabis element, the Adjudicative Committee suspends the Respondent’s Licence to drive in races for a period of 6 weeks.

Reasons for Penalty

[49] In consideration of penalty, the Adjudicative Committee has had due regard for the following factors:

a) It considered and evaluated the circumstances of this breach as outlined in the agreed Summary of Facts.

b) It assessed the submissions lodged by the Applicant and by and on behalf of the Respondent, including mitigating and aggravating factors and his personal circumstances.

c) It reflected on the Respondent’s belated admission that he is still using Cannabis and that he used Methamphetamine proximate to being tested, and that his explanation to the RIB Investigator of the Cannabis being laced was not true.

d) His record was also considered, namely one previous conviction for Misconduct, and given that the offending occurred 10 years ago, the Adjudicative Committee treated it as a neutral factor.

e) Finally, in determining the penalty, the Adjudicative Committee was mindful of the need to ensure that the sanction imposed appropriately operates as a means of deterrence, denunciation, and accountability. In this regard, the Adjudicative Committee is mindful that the penalty it imposes must deter others who may contemplate breaching Harness Racing’s Drug Use Rules; that drug use must be denounced and those responsible are held to account, balanced with the need to offer rehabilitative measures.

Methamphetamine Element

[50] With regards to the Methamphetamine element of the Charge, the Respondent now admits that he uses Methamphetamine – hence the positive drug test result. He also told the Adjudicative Committee that he accepts that his original explanation that the Cannabis was laced was incorrect. In any event, based on the lack of cogent or credible evidence, the Adjudicative Committee came to a preliminary view that it was most unlikely that the Cannabis was laced.

[51] There are no recent precedent cases relating to the detection of Methamphetamine use by Harness Drivers.  The RIB referred to five precedent (Thoroughbred) Jockey and Trackwork Rider cases, where it was said that the offending was broadly of a similar nature to this breach. Penalties in those cases ranged between 9 and 12 months disqualification.  The RIB seeks a 12 month period of disqualification, whereas Mr Cole has sought a period of suspension.

[52] Whilst the reference to the Thoroughbred precedent cases provides a helpful framework, the Adjudicative Committee must point out that there are significant points of difference between the two Codes in terms of their respective Penalty Rules and starting points.  For example, Thoroughbred Penalty Rules provide for an offender (a) to be disqualified for a period not exceeding 5 years; and/or (b) to be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and/or (c) to be fined a sum not exceeding $50,000.  And the starting point for a charge of this nature, has settled on 12 months disqualification (based on precedent and Appeal Tribunal Decisions).

[53] On the other hand, the maximum penalty under the Rules of Harness Racing is a fine not exceeding $10,000; and/or a 12 month suspension or and/or a disqualification for a period not exceeding 12 months.  Moreover, the RIB Harness Penalty Guide starting point for a breach of Rule 512 is 8 weeks suspension (first breach) and 12 weeks suspension (second breach). The Adjudicative Committee accepts that this is only a guide but, in its view, it does not adequately reflect the fact that offences involving different Drug Classes invariably require a range of different penalties to be imposed, depending upon the Class of Drug under review.  The Adjudicative Committee understands that when the RIB Harness Penalty Guide was promulgated and published in February 2023, there had been no recent cases/prosecutions involving the detection of Methamphetamine.  The Adjudicative Committee considered Mr Cole’s submission concerning the 12 month suspension imposed in 2011 on Harness Driver Brownlee for two comparable charges. The Adjudicative Committee doesn’t know the full circumstances of the Brownlee case and it doesn’t view this necessarily as a contemporary precedent case as attitudes towards drug use, particularly Class A Drug use, in society and the Industry have shifted.  There is widespread recognition that its use must be denounced, perpetrators held to account, alongside opportunities given to rehabilitate.

[54] The Adjudicative Committee is also particularly mindful of the Appeals Tribunal’s comments in the Orange v RIU (2021) Decision.  In that Appeal Decision, it was said at para (22):

It can be assumed that the starting point for breaches for cases of the Thoroughbred Racing Rules must consider maximum penalty.  In the same way …. breaches take into account the maximum penalty under Harness Racing Rules…We are satisfied it was wrong for the JCA to simply transpose a case under the Thoroughbred Racing Rules with a significantly higher maximum penalty and a very much higher alcohol level to reach a starting point that it did in this case.

Further, with reference to the Penalty Guide, the Tribunal said at para (28):

While we accept, it is only a guide. We consider there must be clear and compelling reasons to set it to one side and to go further. We do not see such compelling considerations in this case.

In Orange at para (23) it was also reinforced that the Penalty Guide does stress the need for consistency but recognises the need to retain the Judicial Committee’s discretion to be exercised with readily ascertainable and transparent parameters.

[55] There is clearly a discrepancy between the two Codes’ Penalty Regimes and starting points. Methamphetamine is a Class A Drug, its impact on society is well established, therefore the penalties laid down for Licence Holders when they test positive to its use, have always included a significant period of disqualification. The starting point it seems, almost without exception, being 12 months. However, this has only been in Thoroughbred Racing and as previously highlighted, there have until now, been no recent Harness positives for Methamphetamine. It is important for consistency that ‘like’ offending, as far as is possible is dealt with by ‘like’ penalties, within the Guidelines set down by each Code’s Rules and Penalty Guides.

[56] The RIB sought a 12 month disqualification in relation to the Methamphetamine Charge. This is based on the comparable Thoroughbred precedent cases that were submitted by the RIB. Ms Fox in her submission, strongly emphasised that there needed to be some parity between the Codes when it came to dealing with breaches involving drug use, particularly when the drug in question is Class A Methamphetamine.

[57] The Adjudicative Committee has considered this alongside the factors raised in Orange and has come to the view that sanctions relating to the Class A Methamphetamine offending in either Code, must be treated much more harshly than Class C Drug Cannabis offending. And in that regard, the Adjudicative Committee believes there is a compelling case for it to depart from the Penalty Guide starting point.  In its view, there must be a significant uplift in penalty for a Methamphetamine Charge compared to a Cannabis Charge, with some recognition and allowance given to the fact that the RIB Harness Penalty Guide has a lesser starting point than that which has been applied to similar breaches in the Thoroughbred Code. Accordingly, the Adjudicative Committee sets the starting point at 9 months disqualification.  See its further comments regarding aggravating and mitigating factors.

Cannabis Element

[58] With regards to the Cannabis element of the Charge, the RIB submitted precedent cases suggesting that a penalty ranging between 6 and 9 weeks (suspension) would be appropriate. What sets this case apart from the precedent cases, is the Respondent’s submission that he has been a regular user and is still using.  In doing so, is and has been, knowingly flouting the Rules for a considerable time under the mistaken belief that he was unlikely to be selected for drug testing.

[59] The Adjudicative Committee sets the starting point for this charge at 7 weeks suspension.

Culpability

[60] The Respondent’s level of culpability is assessed as being above mid-range. By his own admission, his use of Cannabis and Methamphetamine cannot be categorised as a ‘one-off’ use.

[61] Detection of Methamphetamine use by Harness Racing New Zealand Drivers is rare and as such there are no recent precedent cases, Brownlee (2011) being the last case brought to the Adjudicative Committee’s attention.  It is however, worth restating what has been recently said in relation cases involving the other two Codes, namely that this case must serve as a warning, a deterrent and timely reminder to others in the Industry who may contemplate using Prohibited Drugs…  Several cases have emerged in recent times where the significant risks have been highlighted, for example in RIU v Donoghue (2019) and RIU v K Toomer (2020) it was said that:

…. Methamphetamine is a Class A Controlled Drug. The issues associated with its use are well documented and it is said to be at the heart of many health, social and economic problems within communities across the whole of New Zealand. The Racing Industry is a community in its own right and is not immune from the effects and consequences of this drug. Thankfully, the detection of Methamphetamine is a relatively rare occurrence within racing…

[62] It was further stated in RIB v Smith (2022) that:

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.

[63] The Adjudicative Committee totally agrees with, and supports, the above comments as raised in Donoghue, Toomer, and Smith as they apply equally to those involved in the Harness Industry who engage in safety sensitive activities.

Mitigating Factors

[64] The RIB outlined detailed aggravating and mitigating factors at paragraphs 34 to 40.  Mr Cole, in support of Mr Gillies, raised a number of points in mitigation, some of these include:

• He is suffering from stress and a medical condition.
• He has financial pressures.
• He has indicated a willingness to seek treatment via his Doctor and participate in rehabilitation counselling – the onus is on him to do so.

[65] The RIB raised the following points in mitigation:

• He pleaded guilty at the first opportunity.
• This is his first drug offence.

[66] In recognition of the mitigating factors, the Adjudicative Committee applies a 4 week reduction to the 9 month starting point in relation to the Methamphetamine Charge and a 1 week reduction to the 7 week starting point for the Cannabis Charge.

Aggravating Factors

[67] The RIB raised the following aggravating factors:

• While it is the Respondent’s first drug offence, he now admits to having used Methamphetamine in the period leading up to being tested.
• The Respondent also has acknowledged that he continues to use a small amount of Cannabis, but is seeking treatment to deal with this addiction.
• Methamphetamine is a Class A Drug, and the Respondent is aware of its effect.
• The Respondent has shown no remorse.

[68] In recognition of the aggravating factors, with regards to the Methamphetamine Charge, taking into account that the Respondent now acknowledges and accepts that he used Methamphetamine, and that the Cannabis wasn’t laced, the Adjudicative Committee applies a 4 week uplift.

[69] The Adjudicative Committee must point out that had he not belatedly admitted having recently used Methamphetamine, it may have considered a greater uplift (i.e., more than the 4 weeks that it has applied). But he must be given some credit for ultimately ‘coming clean’.  No uplift is applied to the Cannabis Charge.

[70] In the final result, mitigating and aggravating factors are ‘neutral’, in that they cancel each other out.

[71] This results in a final disqualification period of 9 months in relation to the Methamphetamine Charge; and a 6 week suspension in relation to the Cannabis Charge.

Rehabilitation

[72] Mr Cole submitted that he believes the Respondent is “on the road to recovery and should be encouraged to keep working on his health and given every opportunity to fulfil his passion of Harness Racing”. Mr Cole added that he has every confidence in the Respondent “will get over this…”

Clause 28 (Sanctions) in the Rules of Practice and Procedure for the Adjudicative Committee and Appeals Tribunal set out in the Fifth Schedule of HRNZ Rules provide that:

28A.2 An Adjudicative Committee may defer any decision on sanction or penalty, or any part thereof (other than a mandatory sanction or penalty) for any reason including that:

…(b) The person is undergoing, or is to undergo, training, counselling, treatment, or any other rehabilitative measure or …(c) Any other reason the Committee considers relevant.

28A.3 The Adjudicative Committee when making an order under clause 28A.2 may impose any condition(s) including giving a direction that:

…(b) The person undergoes training, counselling, or any other rehabilitative measure.

…(e) The person attends to any other matter or comply with any other condition(s) the Tribunal considers relevant.

[73] The Respondent has been involved in Harness Racing for a long time.  Whilst there is no place for drugs in sport generally, and racing specifically, the Adjudicative Committee believes that within the boundaries of the Rules, he be given the opportunity to rehabilitate using welfare services that are available either publicly or within Racing. On that basis, the Adjudicative Committee believes that part of the Respondent’s penalty may be suspended if he participates in a recognised drug counselling / treatment / testing programme.

[74] Accordingly, the Adjudicative Committee directs pursuant to Clauses 28A.2 and 3, that the Respondent attends and completes a counselling and/or rehabilitation programme agreed to by the RIB and the Respondent, and if he provides evidence of completion of the counselling and provides a clear drug test after he has served 7 months of his disqualification, the final 2 months of this disqualification period will be suspended.

Penalty and Costs:

[75] The Respondent is disqualified for a period of 9 months in relation to the Methamphetamine Charge (includes Public Trainers and Graduation Drivers Licenses).

[76] The Respondent is suspended for 6 weeks in relation to the Cannabis Charge.

[77] The Adjudicative Committee directs that the Respondent attends and completes a counselling and/or rehabilitation programme agreed to by the RIB and the Respondent, and if he provides evidence of completion of the counselling / treatment and provides a clear drug test after he has served 7 months of his disqualification, the final 2 months of this disqualification period will be suspended.

[78] The effect of the disqualification is that the Respondent will need to make arrangements with his Owners and others who have an interest in the operation of his Stable to transfer his horses into the care of another Trainer.  The Adjudicative Committee was told that he currently has 10 horses in work.  The Adjudicative Committee appreciates that this could take some time to organise, and, on that basis, it directs that the period of disqualification will take effect 3 weeks from the verbal delivery of this Decision (i.e., from 8 September 2023 which is 3 weeks from 17 August 2023).  Therefore, the term of disqualification commences 8 September 2023 and concludes 7 June 2024, subject to paragraph [77] above.

[79] A period of suspension for a charge of this nature would normally recognise time spent on stand-down pending the charge being heard.  This approach is discretionary.  In this case, the Respondent has already spent 6 weeks on stand down.  The charge was to be heard earlier, but was adjourned at the Respondent’s request.  Time spent on stand down should not be treated as a penalty, but rather as a means to ensure that the risks involved in participating in safety sensitive activities are mitigated.  The Respondent was stood down on 6 July 2023.  If the full six weeks on stand down is taken into account, it would mean that the Respondent has served his time and can resume race driving.  That is not the Adjudicative Committee’s intention and on that basis, in the exercise of its discretion, the Adjudicative Committee recognises 3 weeks of the time spent on stand down, and directs that his 6-week period of suspension concludes at midnight 7 September 2023.  Accordingly, for the sake of clarity, the Respondents 6-week suspension is effective from 27 July until 7 September 2023 (inclusive).

Costs

[80] Costs of $187.50, being the cost of the sample analysis carried out by the ESR, are awarded in favour of the Applicant.

[81] This charge was heard on a Raceday. Although some costs have been incurred, on this occasion, no costs are sought or awarded, in favour of the Adjudicative Committee.