Non Raceday Inquiry – Written Decision dated 21 July 2022 – Robert Harris

DECISION OF ADJUDICATIVE COMMITTEE

1.  Ms Murrow, an RIB Investigator, charged Mr R Harris with a breach of Rule 656(3) of the NZTR Rules of Racing. She alleged that on 15 June 2022, when riding trackwork at Awapuni Racecourse, when Mr Harris was required to supply a urine sample, which, upon later analysis, was found to contain the controlled drug Methamphetamine.

2.  Mr Harris admitted the charge.

3.  Rule 656(3) where relevant, provides that: a Rider or other Licenceholder who has, or is carrying out, or is likely to carry out a Safety Sensitive Activity at a Racecourse when having been required by an Investigator to supply a urine sample, must not have a sample which is found on analysis to contain any controlled drug as defined by the Misuse of Drugs Act 1975.

4.  Methamphetamine is such a Class A Controlled Drug. A “Safety Sensitive Activity” includes riding a horse in trackwork.

5.  The penalty provisions for a breach of Rule 656(3) are contained in Rule 803(3) which provide that (if a penalty is not otherwise provided in the Rules), a Licenceholder committing a breach of Rule 656(3) 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.

Facts:

6.  Mr R Harris was on 15 June 2022 the holder of a Trackwork Licence.  He was aged 41 years, and regularly rode trackwork at Awapuni Racecourse in Palmerston North for Licenced Trainer Mr G Lynds.

7. On 15 June 2022 he was riding trackwork at Awapuni Racecourse and was one of 9 people, performing a “Safety Sensitive Activity” that day, who were randomly selected for drug testing.  Despite being served with the required notification to present himself between 7.30am and 9.30am at the Drug Testing Agency Van for testing, Mr Harris failed to do so, and left the racecourse.  He knew he had consumed Methamphetamine the previous day.  The Investigator drove to Mr Harris’ residence and advised him that his failure to attend for testing was a breach of the Rules of Racing.  Mr Harris then admitted that he had consumed the drug Methamphetamine the previous day and that he knew he would likely have returned a positive result.  He returned to the Testing Van, provided a urine sample which, upon later analysis by ESR, was positive to Amphetamine and Methamphetamine, prohibited substances.

8.  On 30 June 2022 Mr Harris was given the usual notice that his Trackwork Licence was automatically “withdrawn until such time as the RIB Adjudicative Committee delivers a substance decision in relation to any Information that is filed …”  That Information has now been dealt with.

9.  Unfortunately for Mr Harris, he had a previous breach of the Rule when he tested positive to the drug Methamphetamine in early 2021.  As a result, he was disqualified for 11 months on 25 June 2021 (to reflect that he had had his licence withdrawn 1 month prior to then being dealt with by the Judicial Committee).  That Committee said that the operation of that disqualification was suspended for 3 months (so effectively he served a penalty of 8 months to enable completion by him of a drug rehabilitation course).

Submissions for Penalty:

10.  The Informant submitted that a penalty at least of 18 months disqualification was required.  She referred the Adjudicative Committee to cases relating to Methamphetamine use, such as RIU v Eriha (June 2022 – 12 months disqualification of a Trackwork Rider); RIU v Donoghue (November 2019 – 12 months disqualification of a Trackwork Rider), Mr R Harris’ previous breach (June 2021) – 11 months disqualification, suspended for 3 months), RIU v Ihaka (January 2016 – 20 months disqualification, following a 16 month disqualification  5 years earlier for a similar breach).

11.  Mr Lynds on behalf of Mr Harris outlined a number of personal and mitigating factors, much of which had been submitted when Mr Harris was last dealt with by the RIU in June 2021.  He advised that Mr Harris was still having drug use counselling.  Despite the reoffending Mr Lynds, although naturally very disappointed, was willing to assist Mr Harris in his rehabilitation and continued employment.  This was a generous and charitable stance by Mr Lynds who has supported Mr Harris throughout his tribulations in his family and personal life.

12.  Mr Harris said, at first, that on this occasion he had only “fallen short once”, by taking some Methamphetamine which he said was offered by a friend.  That assertion mirrored the excuse provided to the Judicial Committee last year, when he then said the breach was a “one off”. But in answer to questions put to him by this Adjudicative Committee, Mr Harris prevaricated and was unconvincing referring to “one or two” other instances of use by this drug.  It is a compelling inference, that we draw, that despite the breach of last year and the 3 month suspension, of the operation of his penalty, that he has continued to use Methamphetamine when presenting himself to ride trackwork.  We reject as implausible any claim that this later offence, one month after his previous term of disqualification expired, was isolated.  Whatever counselling he has undertaken, is not achieving the desired results.

Penalty:

13.  It has repeatedly been emphasised in a number of cases, that the three Racing Codes will not tolerate the use of the Class A Drug Methamphetamine by Licenceholders or those in Safety Sensitivity Activities.  Apart from the danger to others and participants involved in the sport, there are serious animal welfare issues as well as integrity impacts if horses are contaminated by such use by others (a well known and troubling trend) so as to be disqualified from a race to the disadvantage of Owners and Trainers.  The safety of other Licenceholders is also a factor.   Stern sanctions are necessary to deter others, as well as the present offender, so as to protect all involved in the Industry and uphold its standards.

14.  All cases of penalty are fact specific depending on their many various circumstances.  Apart from those referred to by the Informant (set out in para 10) some other examples include:

• RIU v C Lammas (29 October 2020) – 10 months disqualification.
• RIU v Thornley (20 January 2017) – 10 months disqualification and $2,000 fine.
• RIB v Lockett (19 April 2022) – 3 years disqualification of a Trainer with a period of 18 months to elapse before she would be able to apply (but not necessarily be granted) for her Trainer’s Licence to be restored.  That case also involved the disqualification of the winning horse contaminated from the drug use of the Trainer.

15.  We take as a proper starting point a period of 15 months disqualification.  It is especially aggravating that:

• The breach occurred 1 month after Mr Harris’ previous disqualification finished.
• He had the earlier breach and well knew of the consequences that were to follow.
• He endeavoured to evade the testing procedure that he knew would expose this current breach.
• He has continued to offend despite a quite “lenient and a compassionate” decision last year and that 3 months of that disqualification did not operate, yet ignored the leniency.

16.  An uplift of 3 months from the starting point is necessary to reflect these aggravating factors.

17.  The mitigating factors are minimal – separate to those which were already taken into account when Mr Harris was disqualified in June 2021.  We do not accept that this was “one off” offending.  Such a claim was advanced by him when dealt with a year ago.  It has a hollow ring.  He continues to use Methamphetamine, despite whatever counselling he has taken.  This is likely to involve significant expense (up to $100 a “point”), and harm to himself and his family which arises solely as a result of his continued offending.  His riding trackwork is hazardous.

18.  Accordingly, a period of disqualification of 18 months is necessary.  Given that he has been unable to ride trackwork (although not “disqualified”) since 30 June 2022 (3 weeks), his disqualification is dated to commence on that date.

19.  Mr Harris is disqualified for 1 year and 6 months commencing on 30 June 2022.  There is no order as to costs.