Non Raceday Inquiry – Written Penalty Decision dated 11 April 2024 – Hamish McNeill

Introduction

[1] Rider Hamish McNeill (the “Respondent”) is the holder of both a Class B (Apprentice Rider) and Class D (Jumps Rider) Licence issued by New Zealand Thoroughbred Racing (NZTR). Following a positive test result to the controlled drug Cannabis (THC), he admitted a charge filed by Racing Integrity Board (RIB) Investigator Ms Courtney Fox (the “Applicant”), alleging use of Cannabis.

[2] The charge was heard prior to Race 1 at the Auckland TR Meeting at Ellerslie on Wednesday 10 April 2024.

[3] This is the Penalty Decision arising from the Respondent’s admissions of the charge.

The Charge

[4] The Particulars of the charge are:

THAT On  Wednesday the 20th of March 2024 at  Pukekohe Racecourse, having been required by a Racing Investigator to supply a sample of urine in accordance with Rule 656(3) of the NZTR Rules of Racing, 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. (Information Number A18517 refers).

[5] The charge is admitted and is therefore deemed to be proved.

The Rule

[6] NZ Thoroughbred Racing (NZTR) Rules of Racing (the “Rules”) relevant to this hearing is 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

[7] 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,

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

General Information

[9] Pursuant to Rule 903(2)(d), the RIB Acting Chief Executive, Mr G Davey has authorised the filing of Information (No. A18517) alleging that Mr McNeill was in breach Rule 656(3) on the said date.

[10] Full particulars of the charge are contained within the Information and at (Paragraph 4). The Information was served on the Respondent on 28 March 2024.

[11] The Respondent was also served with a stand down notice dated 26 March 2024.

[12] At the commencement of the hearing, he confirmed his admission of the breach and that he understood the nature of the charge.

Summary of Facts

The key salient points are as follows:

[13] The Respondent is a 28 year old Apprentice Jockey indentured to Shaun and Emma Clotworthy, based at Byerley Park. He has been Licenced as a Jumps Jockey (Class D) since 2015 and became an Apprentice Jockey (Class B) in 2023.

Circumstances of the offence

[14] On  Wednesday 20 March 2024, Investigators from the RIB conducted routine drug testing at the Auckland Thoroughbred Racing Meeting, held at the Pukekohe Racecourse.

[15] The Respondent was observed in the Jockey’s area of the Racing Club and was scheduled to ride in Races 1 and 2. He was one of twelve who were selected for testing who were performing a ‘safety sensitive activity’ that day. ​

[16] At 12:56 pm, he was served with a Drug Testing Notification Form advising that he was required to present at The Drug Detection Agency (TDDA) van for testing prior to  4:30 pm. The Respondent acknowledged that he understood and accepted the notice.

[17] At 3:40 pm, the Respondent presented at the TDDA van and provided a urine sample at 4.02 pm. 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.

[18] On  Monday 25 March 2024, 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 60 ng/mL. The urinary creatine level of the sample was found to be 139 milligrams per litre. This is less than the recommended 200 milligrams per litre, indicating that the sample was dilute. Cannabis is a Class C Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[19] On  Tuesday 26 March 2024, the Respondent was advised of the positive result and that he would be issued a stand down notice as a result. This was issued via email on Tuesday 26 March 2024 and explained in full via a phone call.

[20] When spoken to about the positive result, the Respondent explained that he had smoked a Cannabis joint that was passed around at a party approximately one month prior.  He further stated that he was not riding at the time, as the Jumps Season had not yet started and he did not believe that the drug would still be in his system when he resumed riding.

[21] The Respondent has no current charges and no previous offending of a similar nature.

Submissions as to Penalty – Applicant

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

[22] The Respondent has admitted the breach.

[23] New Zealand Thoroughbred Racing commenced drug testing Industry participants in 1995 and since then, there has been growing awareness that there is an absolute obligation on Riders to present themselves free from the influences of drugs.

[24] The RIB submits that all Riders should be aware of the policy and the consequences should they not comply.

[25] The testing is conducted to maintain a safe and healthy workplace and to maintain the integrity of the Industry.

[26] RIB records indicate that Mr McNeill has been drug tested on one previous occasion (2023), providing a clear result.

Offence details

[27] Offence details are contained in the Summary of Facts (see paragraphs 13 to 21).

[28] In essence, the Respondent was riding at the Auckland Thoroughbred Racing Meeting held at the Pukekohe Racecourse, whilst the drug THC (Cannabis – level 60ng/mL) was within his body. The ESR reported level of THC (60ng/mL) is unhelpful in determining the use of Cannabis by Mr McNeill. The minimum level tested is 15ng/mL and a high level considered to be over 1000ng/mL.

Sentencing Principles

[29] The RIB refers to the four principles of sentencing which they summarise as follows:

1. 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.
2. In a racing context, it is extremely important that a penalty has the effect of deterring others from committing similar offences.
3. A penalty should also reflect the disapproval of the RIB for the type of behaviour in question.
4. The need to rehabilitate the offender should be taken into account.

[30] The RIB submits that all four principles apply in this case.

Precedent cases

[31] The RIB submits that historical penalties for similar breaches show some divergence dependent on the type of drug, the amount of the drug in the system and additional case relevant circumstances. Recent penalties for Track Riders and Jockeys positive to the Class C Controlled Drug Cannabis are highlighted below:

• RIB v K BURGESS (7.11.2023) – Trackwork Rider – Level >500 ng/mL; eight-weeks suspension (secondary THC offence) and costs of $187.50 for sample analysis.
• RIB v K WILES (29.09.2023) – Trackwork Rider – Level >500 ng/mL; six-weeks suspension (reduced to 5 weeks on provision of negative drug test) and costs of $187.50 for sample analysis.
• RIB v E WENN (12.01.2023) – Licenced Stablehand – 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 (reduced to 5 weeks on provision of negative drug test) and costs of $187.50 for sample analysis.

[32] Reference is also made to recent penalties for Harness Drivers positive to the Class C Controlled Drug Cannabis. The cases referred to are in the 4 to 6 week range.

Aggravating Factors

[33] The Respondent has acknowledged and understands that Cannabis is a Class C Controlled drug and that its use is prohibited under the Rules and conditions of his Licence.

[34] The urinary creatine level of the sample provided by the Respondent was found to be 139 milligrams per litre. This is less than the recommended 200 milligrams per litre, indicating that the sample was dilute.

Mitigating Factors

[35] The Respondent entered an early guilty plea and accepted full responsibility for the positive test result. He has been compliant, cooperative, and respectful with all RIB Staff throughout the process.

[36] The Respondent has no prior convictions for similar offending.

Conclusion

[37] The RIB submits that a six-week suspension of Mr McNeill’s Class B & D (Rider) Licences be imposed – (backdated to 26/03/2024 when he was ‘stood down’) and the costs of the ESR analysis of $187.50 is sought, payable to the RIB.

[38] The Respondent was referred by the RIB to the NZ Racing Head of Wellbeing for AOD Counselling, this assistance was declined.

Submissions as to Penalty – Respondent

[39] The Respondent said that he was extremely sorry for his offending and he acknowledged he had let down his supporters, including Mr and Mrs Clotworthy.

[40] He said that he is not a regular Cannabis user, and such was his willingness to demonstrate this, prior to the hearing, on his own volition he completed a drug screening test via TDDA. The TDDA certificate, dated 9 April 2024 indicated a ‘clear’ drug screen result – meaning that no Cannabis or other drug was detected.

[41] He added the following submissions:

• That he fully accepts his wrongdoing.
• That following an accident in December 2023 he went “back home” to the UK and US during the summer months and resumed race riding in late February. He said that he was not riding when he had smoked the Cannabis (the subject of this charge).
• That his loss of earnings are significant, having missed Flat and Highweight rides during his stand down period.
• That he would like to be back riding in May 2024, because there are some Feature Jumps Race Meetings scheduled.

Decision and Reasons

Decision

[42] The Adjudicative Committee has determined that a 6-week suspension, with 1-week stayed subject to a negative test (provided by an approved Drug testing facility) prior to the end of the 5th week is an appropriate penalty.  If those conditions are met, the Respondent will serve out a 5-week suspension, after which he will be able to resume race riding.

Reasons

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

1. The circumstances of the breach, as indicated in the Summary of Facts.
2. The submissions lodged by the Applicant and Respondent, including mitigating and aggravating factors.
3. Penalties that have been imposed for like offending (precedent cases) under Rule 656(3).
4. The Respondent’s level of culpability, his personal circumstances and the fact he is well supported by his Employers Mr and Mrs Clotworthy. He clearly understands that he has let down many of his supporters. During the hearing, he impressed by fully accepting his wrongdoing and his expression of genuine remorse.
5. The Respondent’s frank admission and cooperation with the investigation.
6. The Respondent’s clear record under the Rule.
7. The Respondent’s willingness to demonstrate that he is not a regular Cannabis user by providing prior to the hearing, at his own cost, a clear drug screening test.
8. The need to denounce breaches of this nature and hold the Respondent to account by imposing a penalty that is meaningful and has consequences for him.

[44] Although now an Apprentice Rider at 28 years old, the Respondent is an experienced Jumps Rider who has enjoyed considerable success in that role since 2015.  His Apprenticeship commenced a little over 12 months ago and given that he has weight restrictions, he has also enjoyed some success as a Flat Rider.  Having been stood down since 26 March 2024, and during his period of suspension, the Respondent is unable to ride in either Flat or Jumps Races.  Therefore, the resultant penalty does have real and meaningful impacts for him, including the loss of race riding earnings and the potential loss of connections or mounts at this time of the year, given that the Jumps Racing Season has just commenced.

Precedent cases

[45] At paragraph 31, the RIB presented a number of cases said to be similar in nature to this matter.  The range of penalties imposed in those cases varied from 5 to 8 weeks.  The variance is due to each case being determined and dependent on its own facts.  Two of the cases, Thornton and Wiles, resulted in 6 week suspensions, with one week being stayed subject to them providing a negative (clear) drug test.

[46] The circumstances of this breach are such that the Adjudicative Committee has adopted the same approach that was taken in Thornton and Wiles (see paragraph 31). Whilst a penalty of six weeks suspension is imposed in the case, as it is entitled to do under the provisions of Rule 812, the Adjudicative Committee deems that part of the penalty may be stayed conditional to the Respondent undertaking and providing a clear drug screening test prior to the expiry of the 5th week of his suspension.

[47] For the sake of clarity, Rule 812(b) provides that:

The Adjudicative Committee may:

(a) …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.

[48] From the 6-week starting point, one week is stayed, and he will therefore serve out a 5 week suspension commencing from the date he was stood down (26 March 2024).  If however, for whatever reason, he does not provide a clear test result, his suspension will conclude after six weeks.

Penalty and Costs:

[49] Mr McNeill’s Licences (Class B and D) are suspended for 6 weeks, with one week being stayed subject to the provision of a clear drug screening test.

[50] The period of suspension is backdated to 26 March 2024 (when he was ‘stood down’) and will conclude on 30 April 2024, meaning that he can recommence race riding on 1 May 2024.

Costs

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

[52] Given that this matter was heard on a Raceday, no order is made for any other costs.