Non Raceday Inquiry – Written Decision dated 23 July 2024 – Zane Thomson

The Respondent, Mr Zane Thomson, is charged under r 656(3) with providing a urine sample that contained Cannabis.

Information A4844 reads: “On the 27th June 2024 at Riverton Racecourse, having been required by a Racing Investigator to supply a sample of your urine in accordance with r 656(3) of the NZTR Rules of Racing, you provided a sample which upon analysis was found to contain the controlled drug THC (Cannabis) as defined in the Misuse of Drugs Act 1975.”

Mr Thomson is a Licensed Trackwork Rider under the Rules of NZTR. He is 51 years old and has held his Trackwork Rider’s Licence since 2007. He is presently riding trackwork at Riverton for his partner Kylie Wakely and Trainer Kelvin Tyler. He also helps others as and when required, having between 12 and 14 rides a day.

The Respondent has admitted the breach of r 656(3). Both parties agree that the matter can be determined on the papers.

Rule 656(3) relevantly provides that “a Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, who, having been required by an 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, artefacts or isomers.”

Cannabis is a Class C controlled drug.

The penalty provision is r 803(3) which provides for up to five years’ disqualification, or suspension for up to 12 months, and/or a fine of up to $50,000.

Summary of Facts

On Thursday the 27th of June 2024, RIB staff carried out routine drug testing of Track Riders and others involved in safety sensitive activities at the Riverton Racecourse.

Mr Thomson was one of eight Licence Holders selected to be tested. He was approached by an RIB Investigator and given a Notice at 7.38am, requiring that he provide a urine sample to the Drug Detection Agency before 9.30am. He accepted the Notice and understood what was required.

The sample was subsequently provided at 7.57am and returned a non-negative result indicating the presence of THC, that is Cannabis. Mr Thomson was stood down from carrying out any track riding from that day.

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 confirmatory analysis. On the 1st of July 2024, ESR confirmed that the urine sample provided by Mr Thomson was positive to Cannabis at a THC Acid level of 160 ng/mL.

A Notice was given to Mr Thomson on the 2nd of July 2024, advising that his Licence had been withdrawn with effect from that date.

Mr Thomson was fully compliant throughout. In explanation, he said he had spent several hours with a friend in a caravan the night before, and that the friend was smoking cannabis throughout, so he must have inhaled it as a secondary source. He denied taking any directly himself, saying that he only consumed alcohol now and rarely smoked.

Mr Thomson said he has been involved with horses throughout his life and that he has held a Licence for trackwork since they first came out. He has a prior NZTR Cannabis charge that occurred in 2010, when he was track riding.  On that occasion, he was suspended for a period of 6 weeks and fined $350.

Decision

The Respondent has admitted the charge; accordingly it is found to be proved.

Informant’s Penalty Submissions

The principles of sentencing relevant to this charge were summarised to be:

• 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 Committee for the type of offending in question.
• The need to rehabilitate the offender should be considered.

The Informant by way of background, noted that NZTR commenced drug testing Industry participants in 1995 and since that time, there has been a growing awareness that there is an absolute obligation on Licence Holders to present themselves free of the influences of any drugs.

All participants are aware of the policy and the consequences should they not comply. 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.

Comparable cases were identified to be:

• RIB v Hewitson (12 April 2024) – level >89 ng/ml; six weeks’ suspension and costs of $187.50
• RIB v McNeill (11 April 2024) – level >240 ng/ml; six-weeks’ suspension with one week stayed upon provision of a clear sample after 5 weeks.
• RIB v Wiles (3 October 2023) – level >60 ng/ml; six-weeks’ suspension with one week stayed upon provision of a clear sample after 5 weeks.
• RIB v Wenn (12 January 2023) – Level >500 ng/mL; six weeks’ suspension and costs of $187.50.
• RIB v Aukett (14 June 2022) –level >230ng/mL; six weeks’ suspension and costs of $187.50.

Mitigating factors are that Mr Thomson has co-operated fully with Investigators and has admitted the charges at the earliest opportunity. He has acknowledged his wrongdoing and has shown remorse for his actions, explaining that he had undergone some significant personal setbacks in the previous 12 months, and uses alcohol rather than drugs as a coping mechanism.

It had been some 14 years since his prior breach of the Cannabis Rule, and he maintained that he was not a user, but merely inhaled Cannabis as a secondary source, rather than directly himself.

An aggravating factor was Mr Thomson’s previous conviction for being under the influence of Cannabis whilst track riding, for which he was suspended for five weeks. That was for a higher mid-range level offence and occurred 14 years ago, in August 2010.

There were no records of Mr Thomson having been drug tested by the RIB or its predecessor RIU, since the 2010 matter. He had been offered counselling services, but had declined the invitation, saying he was not a Cannabis user these days and in future, would avoid circumstances whereby he could inadvertently inhale some through others’ use.

The Informant contended that the penalty should be a period of between six to eight weeks’ suspension.

Respondent’s Submissions

The Respondent, despite being afforded the opportunity to make written or oral submissions, has not done so. However, he has accepted the Summary of Facts, and the Adjudicative Committee takes notice of the explanation for the positive result that he gave to the Investigator.

Decision as to Penalty

The Respondent has admitted a breach of r 656(3) in that he has returned a positive result to a urine test for Cannabis which was conducted on 27 June last. The level is 160 ng/mL. He was stood down from trackwork riding that day and his Trackwork Licence was withdrawn from 2 July as a consequence.

The health and safety implications of Drug Rule breaches when Industry participants are engaged in safety sensitive activities, require a denunciatory sentence. The penalty imposed must operate as a deterrent, not only to the Respondent, but also to others who may contemplate breaching the Drug Rules. In addition, the integrity of the Industry is called into question each time a charge of this nature is proved.

Mr Thomson’s reluctance to accept counselling, is viewed in the light of his statement to the Racing Investigator, that he is not a Cannabis user and is not dependent on the drug, and therefore is not in need of counselling to abstain. The level of THC, while not at the bottom of the range, is  consistent with this claim. It is noted that his further claim, that prior to being tested, he had been in close quarters with an acquaintance who was smoking and consequently he inhaled Cannabis as a secondary source, is not an infrequent claim where there is a positive test, and a level of 160 ng/mL is higher than could be expected were this to be the sole source.

Credit is given for the fact that Mr Thomson has accepted accountability for his returning a positive, has admitted the breach at the first opportunity, and has co-operated fully with the RIB investigation. His remorse and personal circumstances are also noted.

The recent cases identified by the Informant and outlined above, provide a guide or reference point for the Adjudicative Committee in this case. For a first breach of r 656(3), a penalty of six weeks’ suspension has commonly been imposed .

A small one-week uplift is appropriate for the previous breach, with regard being had to the fact it is historical. There is some concern that such an experienced Industry participant as Mr Thomson, was prepared to ride trackwork, knowing he had recently been in close company for some hours with someone who was smoking Cannabis. He, himself, has recognised the possibility of secondary inhalation. In so doing, he was placing himself and other Riders and horses at risk.

Penalty

Mr Thomson’s Class B Trackwork Licence under the Rules of NZTR is suspended for a period of seven weeks pursuant to r 803(3). This commences on the day his Licence was withdrawn, viz 2 July 2024, and is up to and including 19 August 2024.

Costs

Costs of $187.50, being the cost of the sample analysis by the ESR, are awarded in favour of the Informant and are payable to the RIB. The matter was heard on the papers. There is no further order as to costs.