Non Raceday Inquiry – Written Decision dated 22 November 2024 – Shane Simon

1.  Mr S Simon is a Class A Licensed Trainer who was charged with a breach of Rule 656(3) of the NZTR Rules of Racing in that:

“On 10 September 2024, at Te Aroha Racecourse, having been required by a Racing Investigator to supply a sample of his urine in accordance with Rule 656(3) of the Rules of Racing, he provided urine which on analysis, was found to contain the Controlled Drug Methamphetamine, being a Class A Controlled Drug as defined in the Misuse of Drugs Act 1975 and that he is liable to the penalty imposed pursuant to Rule 803 of the Rules.

Preliminary

2.  Mr Simon was served in person with the Information on 27 September 2024.  He denied the charge.  He did not then agree to a venue or date for hearing the charge.

3.  Subsequently he declined to engage with the Adjudicative Committee or the Informant to assist in fixing a hearing date.  Mr Simon did not respond to requests from the Adjudicative Committee to assist.  He ignored all communication.  Accordingly, the Adjudicative Committee issued and sent to Mr Simon, pursuant to Rule 915(8)(a), a summons requiring him to attend at the specified time and place of the hearing “to answer any question” put to him by the Adjudicative Committee which related to the defence he wished to present.

4.  At the last moment, 3 working days before the hearing, Mr Simon advised that he wished to change his plea to “guilty”, although his Lawyer (who was unnamed) was overseas and said he had no defence.  He attended the hearing on 18 November 2024 and confirmed he changed his plea to guilty, although he ecliptically said he was “guilty but not guilty”.

5.  Rule 656(3) provides that:

A Rider or other Licenceholder 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 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 a Controlled Drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites, artefacts or isomers.

6.  Mr Simon is aged 58 years and held a Class A Trainer’s Licence and training at Te Aroha Racecourse.  On 10 September 2024, he was riding trackwork at that racecourse.  Routine drug screening was taking place and Mr Simon was one of 11 persons, who were performing “Safety Sensitive Activities” on that day selected by Investigators for urine testing.  Mr Simon attended at the Drug Detection Agency (TDDA) Van at 10.30am and, after appropriate documentation was completed, he gave his consent to drug testing.  The urine sample he then provided was analysed by the ESR on 16 September 2024 and the Certificate of Analysis provided by it confirmed that Mr Simon’s urine sample was positive to the Class A Controlled Drug Methamphetamine/Amphetamine.  Mr Simon was then advised that he would be issued a “Stand Down” Notice and he elected to have this and the Certificate of Analysis sent to him by email.

7.  A statement was later obtained from him on 18 September 2024 in which he said:

(a)  He denied ever having used Methamphetamine.

(b)  He has been around people “a couple of months ago” that were smoking Methamphetamine.

(c)  He raised a “possibility that the positive result “might” be due to medication for pain, heart and blood pressure issues which had been prescribed to him.

8.  Mr Simon did not produce any cogent evidence or statements from his (or any) Doctors to provide any support for his speculative “possibility” that it was his prescribed medication that was the cause of the positive sample.

9.  The Adjudicative Committee initially asked if he wished to adjourn the hearing to enable Mr Simon to call his Doctor to assist him.  But it was mindful that this required him to obtain leave to change (again) his plea to one of “not guilty”, and further that he would continue to be stood down and unable to train horses until such time that the Adjudicative Committee eventually made its decision sometime in the future.  Although Mr Simon then said he wished to change his plea.

10.  After adjourning to deliberate, the Adjudicative Committee declined to give him its consent, or leave to change his plea.  He had provided no information, submission or evidence to suggest his guilty plea was made mistakenly (indeed he said his legal advice was that there was no defence available).  Further, the Adjudicative Committee regarded further delay in disposing of the Information was actually not to Mr Simon’s advantage, as he would have remained unable to train whilst stood down.

Outcome

11.  The Adjudicative Committee does not accept as credible Mr Simon’s claims, or explanations to the Investigator, which are unsupported by any evidence.

12.  First, the Adjudicative Committee is well aware from experience and scientific knowledge, that Methamphetamine is detectable in urine tests for up to 72 hours after its use.  At most, some of its presence can be identified in urine (not hair follicle) for between 3-5 days after use.  But not thereafter.  This can only mean that consumption of the drug must have been no earlier than the previous weekend (6-7-8 September 2024).

13.  Mr Simon’s claim that inadvertent contamination may have arisen from others in his presence, smoking Methamphetamine at a function which he said was “2 months ago”, is rejected.

14.  Mr Simon also raised a “possibility” that medication prescribed to him to manage pain, blood pressure and heart issues may have been responsible for the positive test to Methamphetamine.  That theory put forward is tenuous at best.  In any event, it is unthinkable that a Class A Restricted Drug could ever be an active ingredient in medications prescribed by the Respondent’s Doctor and dispensed by a Chemist.  And if valid, it required Mr Simon to present cogent evidence from his Doctor.

15.  The admitted charge is established.

Penalty

16.  The RIB submitted that a 10 month disqualification was appropriate, and referred to several cases where terms of up to 12 months have resulted.  It referred to the “sentencing principles” of punishing wrongdoing, of reflecting the disapproval of the RIB for the behaviour, the vital importance of deterring other Licensees, the known dangers to other Licensees and horses where dangerous drugs such as Methamphetamine are present in a Licensee’s body when engaging in such activities.

17.  The Adjudicative Committee initially considered that Rule 803(1)(c) might require that, as it says, for a “Trainer’s first offence …. in relation to drugs or alcohol” only a fine can be imposed.  But after further consideration, it accepts that that exception only applies where it “is an alcohol related breach”.

18.  Nevertheless in this case, the Adjudicative Committee only imposes a fine, given all Mr Simon’s circumstances.  His Licence already has been, in effect, suspended for over 2 months because of his stand down.  He has compromised health issues, limited financial resources, and no other means of earning an income and disqualification or further suspension would be excessive.  But a significant financial penalty must follow.

19.  Methamphetamine use by Trainers, Jockeys, and Trackwork Riders is regrettably not rare.  It is a dangerous, highly addictive drug in the high Class A Category under the Misuse of Drugs Act 1975.  Use of it puts others conducting Safety Sensitive Activities in Racing in peril of harm.  It has to be stamped out, if only by removing the Licences from those who infringe.  Deterrence of others is vital.  Naturally persons may, sadly, opt to use this drug but if they do, they may forfeit the privilege that has been given to be licensed in the Industry.  Suspension or even disqualification will often be necessary.  This is, especially to deter others and protect all Licensees.  But in this case, the Adjudicative Committee only imposes a fine on Mr Simon.

20.  Accordingly, the penalty imposed upon Mr Simon for his breach is a fine, for which the Adjudicative Committee takes as a starting point of $6,000.  It is not aggravating that he chose initially to defend or deny the charge, although his continued refusal to respond to communication from the Adjudicative Committee until extremely late in the process is not impressive.  His historical conviction many years ago for an unrelated offence is disregarded as requiring any uplift.  The Adjudicative Committee gives him significant discount for his age, otherwise clear record over 40 years, personal factors, and his being unable to earn any training income for over two months, despite having to meet reoccurring expenses.

21.  From a starting point of $6,000, the Adjudicative Committee gives him a generous deduction of 50%.  He is fined $3,000 and is required to pay $187.50, being the ESR fee met by the RIB.  In addition, he is required to provide to the TDDA and RIB within one month, a urine test (and meet its costs) negative to any Prohibited or Illicit Drugs.

22.  The RIB does not seek any order for costs of the proceedings and the Adjudicative Committee does not make any order for its costs to be reimbursed.