Non Raceday Inquiry – Written Decision dated 3 October 2023 – Kylan Wiles

Introduction

[1] This is the Penalty Decision arising from a charge lodged against Class D Rider Kylan Wiles (the “Respondent”) by Racing Integrity Board (RIB) Investigator, Ms Courtney Fox (the “Applicant”).

Particulars of the charge are that the Respondent:

THAT on Sunday the 17th of September at Te Rapa Racecourse, having been required by a Racing Investigator to supply a sample of your urine in accordance with Rule 656(3) of the NZTR Rules of Racing, you provided urine which upon analysis was found to contain the controlled drug 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 803 of the Rules. (Information Number A18513 refers).

The Rule

[2] NZ Thoroughbred Rules (NZTR) of Racing (“the Rules”) relevant to this hearing are Rule 656(3), Rule 803(3) (Penalty Provisions) and Rule 812.

Rule 656(3) provides that:

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 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 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 Penalty Provisions

[3] Relevant penalty provisions include:

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,

[4] Furthermore, in addition to any penalty that may be imposed, the Adjudicative Committee at their discretion, may impose the provisions of Rule 812 which provide that the Adjudicative Committee may:

(a) in addition to or in substitution of any penalty imposed under Rules 801, 803 and/or 804, require the person committing the breach to complete a counselling or rehabilitation course of the type specified by the Adjudicative Committee; and/or

(b) stay, in whole or in part, and for such period and upon such terms and conditions as it thinks fit, the operation of any penalty imposed for a breach of the Rules, provided that, in the event of any failure to comply with any of the terms and conditions of the stay, the Adjudicative Committee may order that the penalty or the remaining part of the penalty take effect.

The Hearing

[5] The Charge was heard at the Te Rapa Racecourse on the 29th of September 2023. The Respondent was supported at the hearing by his father Dean Wiles.

General Information

[6] Pursuant to Rule 903(2)(d), on the 22nd of September 2023, the RIB Chief Executive, Mr M Clement has authorised the filing of Information (Number A18513) alleging that Mr Wiles was in breach Rule 656(3) on the said date.

[7] Full particulars of the charge are contained within the Information and at (Paragraph 1).

[8] The Respondent has admitted the charge. This was confirmed at the start of the hearing and therefore considered proved.

Summary of Facts

The key salient points are as follows:

[9] The Respondent, Kylan Wiles, is the holder of a Class D (Rider) Licence issued by New Zealand Thoroughbred Racing (NZTR). He is 17 years old and is currently employed as a freelance Trackwork Rider and Jockey (Jumps).

[10] On Sunday the 17th of September 2022, Investigators from the Racing Integrity Board (RIB) conducted routine drug testing at the Waikato Thoroughbred Racing at Te Rapa Meeting held at the Te Rapa Racecourse.

[11] The Respondent was observed in the Jockey’s area of the Racing Club and was scheduled to ride in Races 3, 4 and 7.

[12] The Respondent was one of eight people selected for testing who were performing a ‘safety sensitive activity’ that day.

[13] At 11.37am, the Respondent was served with a Drug Testing Notification Form advising that he was required to present to The Drug Detection Agency (TDDA) van for testing between 11.40am and 4.00pm.

[14] The Respondent acknowledged that he understood and accepted the notice.

[15] 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 analysis.

[16] On Wednesday the 20th of September 2023, ESR provided a Certificate of Analysis and confirmed that the urine sample provided by the Respondent was positive to Cannabis at a THC level of 240 ng/mL.

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

[18] On Thursday the 21st of September 2023, the Respondent was advised of the positive result and advised that he would be issued a stand down notice as a result. This notice was issued via email and explained in detail via a phone call.

[19] When spoken to, the Respondent stated that he had attended a party at a friend’s address the weekend prior to the Great Northern Race Meeting and while there, had consumed approximately 3 brownies and two cookies.

[20] He advised that he was not made aware that the baking contained Cannabis until after he had consumed it.

[21] The Respondent has no current charges.

Submissions by the Respondent

[22] Mr Wiles agreed with the Summary of Facts as submitted by the RIB. In response to a question from the Adjudicative Committee, Mr Wiles confirmed that he knew on the night after he had consumed the baking, that it contained Cannabis.

Submissions as to Penalty (RIB)

In written penalty submissions on behalf of the RIB, Ms Fox submitted that:

[23] The Respondent has admitted the breach, the details of which are contained in the Summary of Facts.

[24] Mr Wiles was riding at the Waikato Thoroughbred Racing at Te Rapa Meeting held at the Te Rapa Racecourse whilst the drug THC (Cannabis – level 240ng/mL) was within his body.

[25] RIB records indicate that Mr Wiles has not been previously tested.

[26] The ESR reported level of THC (240ng/mL) is unhelpful in determining the use of Cannabis.

Sentencing Principles

[27] 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.

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

Precedent

[29] Recent penalties for Track Riders and Jockeys positive to the Class C Drug Cannabis are as follows;

• RIB v E WENN (12.01.2023) – Licenced Stable hand – Level >500ng/mL; six-weeks suspension and costs of $187.50 for sample analysis.
• RIB v C JONES (28.08.2022) – Apprentice Jockey – Level 190ng/mL; eight-weeks suspension and costs of $187.50 for sample analysis. Several aggravating features present in this case.
• RIB v T THORNTON (22.08.2022) – Jockey – Level 110ng/mL; six-weeks suspension (5 weeks on provision of negative drug test) and costs of $187.50 for sample analysis.
• RIB v R AUKETT (14.06.2022) – Trackwork Rider – Level >230 ng/mL; six-weeks suspension and costs of $187.50 for sample analysis.

Recent penalties for Harness Drivers positive to the Class C Controlled Drug Cannabis are as below –

• RIB v N DELANY (29.06.2023) – Junior Driver – Level >500ng/mL; Five-weeks suspension (back dated) and costs of $187.50 for sample analysis. Required to provide evidence of a clear drug test to RIB.
• 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.

Aggravating Factors

[30] Mr Wiles has acknowledged and understands that Cannabis is a Class C Controlled Drug and that its use is prohibited under the Rules.

[31] When questioned regarding the positive test result, the Respondent stated that he had attended a party at a friend’s address the weekend prior to the Great Northern Race Meeting and that whilst there, he had consumed approximately three brownies and 2 cookies.

[32] He further advised that he was not made aware that the baking contained Cannabis until after he had consumed it.

[33] The Respondent was referred by the RIB to the Salvation Army – AOD Clinician to NZ Racing Industry for an assessment & assistance, this assistance was declined as he maintained that the consumption was accidental.

Mitigating Factors

[34] Mr Wiles entered an early guilty plea and accepted full responsibility for the positive test result.

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

Conclusion

[36] The RIB seeks a six-week suspension of Mr Wiles’ Class D Licence (backdated to 21.09.2023 when he was ‘stood down’) and the costs of the ESR analysis of $187.50 (to the RIB).

Submissions as to Penalty – Respondent

[37] Mr Wiles Senior submitted that Kylan Wiles was young and would learn from his mistake. He said that a lot of people relied on him to ride track work (he rides approximately 20 horses per day) and asked whether the Adjudicative Committee could consider a penalty of 4 weeks should he provide a negative drug test.

[38] Ms Fox (RIB Investigator) did not oppose this submission.

Decision

[39] The Adjudicative Committee has decided that a 6-week suspension, with 1-week being stayed subject to terms and conditions set out below, is an appropriate penalty.  If those conditions are met, the Respondent will serve out a 5-week suspension.

Reasons

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

• The circumstances of this breach.
• The submissions lodged by the Applicant and Respondent including mitigating and aggravating factors. The Respondent’s age, admission and his cooperation with the investigation.
• The need to impose a penalty that denounces drug use by Industry participants, when engaged in safety sensitive activities. The penalty imposed must also operate as a deterrent to others who may contemplate breaching the drug use Rules.
• The RIB submitted seven precedent cases, where it was said that the offending was broadly of a similar nature to this breach. Penalties in relevant Thoroughbred cases ranged between 6 and 8 weeks (suspension). The Adjudicative Committee assessed the recent case of RIB vs Ward (which was not included in the RIB submissions) to be the most comparable with the circumstances of this case. This case resulted in a suspension of 5 weeks.

[41] Mr Wiles, by his own admission, confirmed that he knew he had consumed product that contained Cannabis prior to accepting rides at the Te Rapa Race Meeting on the 17th of September. The Adjudicative Committee sees this as an aggravating factor.

[42] In mitigation, was Mr Wiles’ early admission, and co-operation with the RIB. The Adjudicative Committee also had regard for Mr Wiles’ young age.

[43] Given the background to this breach and in particular the Respondent’s age, 17 years old at the time of the breach, the Adjudicative Committee believes there is potential for rehabilitation.  On that basis, the Adjudicative Committee considers this a suitable case to invoke the provisions of Rule 812 which empowers the Adjudicative Committee to:

• stay, in whole or in part, and for such period and upon such terms and conditions as it thinks fit, the operation of any penalty imposed for a breach of the Rules, provided that, in the event of any failure to comply with any of the terms and conditions of the stay, the Adjudicative Committee may order that the penalty or the remaining part of the penalty take effect.

Penalty

[44] The Adjudicative Committee has determined that a 6-week suspension is an appropriate penalty, with 1 week of the penalty stayed if Mr Wiles is able to provide evidence of a clear drug test (at his cost) to the RIB prior to the 25th  of October.

[45] Mr Wiles is suspended from the 21st of September 2023 until the 25th of October 2023 – 5 weeks (and subject to conditions outlined in paragraph [44] above).

Costs

[46] Costs of $187.50, being the cost of the sample analysis, are awarded in favour of the Applicant.

[47] Although this matter was heard on a Raceday and some costs have been incurred by the RIB (Adjudicative Committee), on this occasion, they are waived.