Non Raceday Inquiry – Written Decision dated 8 December 2022 – Ross Brennan

The Informant, Mr Simon Irving, a Racing Investigator with the Racing Integrity Board (RIB), seeks the disqualification of the Respondent, Mr Ross Brennan, under r 803(3) of the New Zealand Rules of Racing.

Information A15827 states: “On the 13th of September 2022 at a Training Facility in Leithfield, 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 urine which upon 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 you are liable to the penalty imposed pursuant to r 803 of the Rules.

Information A15828 states: “On the 13th of September 2022 at a Training Facility in Leithfield, 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 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 r 803 of the Rules.”

Rule 656(3) provides:

A Rider or any 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 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 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.

A hearing was held on 2 December 2022 at Wingatui racecourse. Mr Peter Meulenbroek, Racing Investigator, appeared for the Informant. The Respondent participated by way of telephone and confirmed that he admitted the two charges and accepted the summary of facts.

Summary of Facts

The agreed Summary of Facts states:

1. The Respondent, Ross Michael Brennan is a Licensed Amateur (Class E) Jockey under New Zealand Thoroughbred Racing (NZTR) Rules of Racing.
2. On Tuesday 13 September 2022 Investigators from the RIB conducted routine drug testing at a private training facility in Leithfield, North Canterbury.
3. On that morning Mr Brennan was one of 10 people selected for testing who was performing a ‘safety sensitive activity’ and was served with the relevant Drug Testing Notification Form.
4. At 11.00am Mr Brennan provided a urine sample to a Drug Testing Official which screened positive to the presence of Methamphetamine/Amphetamine & Cannabinoids (THC). The sample was packaged to be sent to the ESR Laboratory for confirmatory analysis.
5. When spoken to by Investigators, Mr Brennan admitted he had smoked Cannabis two weeks prior but denied consuming Methamphetamine. In explanation he stated it may be caused by the Duromine tablets that he takes.
6. On 19 September the ESR issued a Urine Drug Test Report confirming the presence of both Methamphetamine and THC Acid [Cannabinoids] at a level of 100ng/mL.
7. Mr Brennan was advised of the confirmatory result that day and served a copy of the report and a Stand down Notice, withdrawing his licence pursuant to r 657(1)(b).
8. The respondent is 45 years of age and has been employed in the Racing Industry for 18 years, mainly as a Track Rider. He first held an Amateur Jockey’s licence in 2014.

Decision

As the Respondent has admitted the two charges, they are found to be proved.

Submissions as to Penalty

The Informant’s penalty submissions are summarised.

The Respondent is a Licensed Amateur Jockey under the New Zealand Rules of Racing. NZTR records detail that he had one ride in the 2020/2021 season and a total of six rides since 2014.

Mr Brennan has admitted two charges of breaching r 656(3) following his provision of a urine sample on 13 September 2022 positive to the illicit drugs Methamphetamine and THC (Cannabis) at a low-range level of 100ng/mL. At the time of the drug testing Mr Brennan was employed as a Track Rider and Stablehand at a North Canterbury Stable.

NZTR has been drug testing Industry participants since 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:

RIB v K McDonald & D Scott (October 2022) Stablehand McDonald and Track Rider Scott both 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) Licensed Stablehand positive to Methamphetamine — disqualified for 12 months, with a 3-month suspension upon successfully completing rehabilitation treatment with the Salvation Army.

 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.

Mitigating factors identified by the Informant were: Mr Brennan had cooperated fully with Investigators and admitted the charges; the delay in concluding the matter was largely due to Mr Brennan entering a residential drug and alcohol counselling programme of his own volition; he had acknowledged his wrongdoing and had shown remorse for his actions.

The Informant submitted a 12-month disqualification on the Methamphetamine charge and a concurrent six-week suspension on the Cannabis charge was appropriate.

The Respondent replied orally to the Informant’s written and oral submissions.

Mr Brennan stated he was not a regular user of Methamphetamine and had succumbed at a moment of turmoil in his life. His family had moved south to Christchurch from the North Island and it had been an unsettling time. He was very disappointed that he had let the Parsons’ stable down. He said he no longer believed the positive results were due to his use of the drug Duromine, as he had first claimed when he was informed of the test results.

Mr Brennan said he had been in a residential alcohol and drug programme for a month but, while he had found it helpful, he decided he needed to be back in the community supporting his family. He left the programme voluntarily and went through a formal exit process. He had a full-time job outside the Industry and was attending twice-weekly AA meetings. He emphasised drug use was not an everyday thing for him, he was now ‘clean’, and had passed a drug test in his new job.

Mr Brennan concluded his submission by apologising to the Adjudicative Committe and stating he was disappointed in himself.

Decision as to Penalty

The Respondent has admitted two breaches of r 656(3) in that he returned a positive result to a urine test for Methamphetamine and Cannabis that was conducted on 13 September last. He was stood down from 19 September as a consequence. The Methamphetamine charge is clearly the more serious and the lesser penalty for the Cannabis charge will be served concurrently.

With respect to mitigating factors, Mr Brennan has no previous breach of the Drug Rules, he has co-operated fully with the Investigators and admitted the breaches at the first opportunity, acknowledged his wrongdoing, and expressed remorse for his actions.

There is a clutch of cases that the Informant has identified as being relevant in this case to the penalty on the Methamphetamine charge. The penalty in each case, again after an admission of the breach, was effectively 12 months’ disqualification with a 3-month suspension upon rehabilitation. One case, McDonald & Scott, in particular, is very similar in that the two respondents were tested on the same day at the same training facility as the Respondent and returned positives to the same drugs. The one exception to the 12-month disqualification is Scott, who was aged under 20 and was given a 2-month discount for youth and her rehabilitative potential. This does not apply in Mr Brennan’s case as he is aged 45.

The Adjudicative Committee takes guidance from these cases.

In its written decision in Harris the Adjudicative Committee stated:

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.

The Adjudicative Committee in the present case agrees and, in addition, notes the following comment in Smith:

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.

The Adjudicative Committee is similarly optimistic that treatment for Mr Brennan will be successful. His immediate self-referral to a residential treatment programme, his attendance at AA meetings, and his stated intention to engage with the Salvation Army and with Ms Young is to be commended. These are but the first of the many positive steps that he will need to continue to take. The clear resolve of the Respondent to remain ‘clean’ leads the Adjudicative Committee to believe that a drug free Mr Brennan would again be an asset to the Industry.

The Adjudicative Committee discussed with Mr Brennan the possibility of a suspension of the disqualification pursuant to r 812 upon evidence of successful completion of rehabilitative treatment. Mr Brennan stated that while he was determined to rehabilitate, he did not want to have to undergo a further formal programme and counselling, and to undertake the regular testing that resort to this provision would require. The Adjudicative Committee thus does not order any suspension of the period of disqualification.

Mr Brennan’s rehabilitation is just one matter for the Adjudicative Committee to consider. The health and safety implications of the Drug Rule breaches require a denunciatory sentence. The penalty must also have the effect of deterring him and others from committing similar breaches. The integrity of the Industry is called into question every time a charge of this nature is proved — thus, the penalty has to reflect the Adjudicative Committee’s clear disapproval of offending of this nature.

The Informant agrees with the Respondent’s submission that it is appropriate to have regard to the time he has been stood down. Mr Brennan assures the Adjudicative Committee that he has had no contact with racehorses in that time and we accept it is appropriate to have regard to this as the hearing of the matter has been delayed due to his being in a residential programme.

Mr Brennan is disqualified for a period of 9 months and 2 weeks pursuant to r 803(3) on Information A15827 (the Methamphetamine charge). This commences on the day of the hearing and oral decision, 2 December 2022, and takes into account the stand down period. It is in effect a 12-month disqualification.

In relation to Information A15828, the Cannabis charge, a suspension of 6 weeks is imposed, also commencing on 2 December 2022, and will be served concurrently with the disqualification. The Adjudicative Committee sees no prohibition in the Rules to the imposition of a suspension in this manner. The Adjudicative Committee in Eriha also reached a similar conclusion.

The Informant does not seek costs. The matter was heard on a raceday. There is no order as to costs.