Non Raceday Inquiry – Written Penalty Decision dated 14 August 2024 – Matthew Cameron

Introduction

[1] Class A Jockey Mr Matthew Cameron (“the Respondent”) has admitted that he breached Rule 656(3) of New Zealand Thoroughbred Racing Rules of Racing.

[2] On Wednesday 3 July 2024, at the Racing Rotorua Club Meeting held at Arawa Park Rotorua, the Respondent provided a urine sample which upon analysis, indicated the Respondent was ‘not negative’ to Cocaine. Being positive to Benzoylecgonine, a metabolite of Cocaine, which is a Class A Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[3] Pursuant to New Zealand Thoroughbred Racing (NZTR) Rule 903(2)(d), Mr Eliot Forbes CE: RIB authorised the filing of Information No. A17982, alleging that Mr Cameron was in breach of Rule 656(3) on the said date.

Penalty Decision

[4] Having considered the evidence and assessed the submissions lodged by both the Racing Integrity Board (RIB) and the Respondent, the Adjudicative Committee disqualified Mr Cameron for a period of 9 months and ordered analysis costs of $187.50 payable to the RIB.  The facts relating to the breach and reasons for the penalty imposed, are contained within the body of this Decision.

The Charge

[5] The particulars of the charge outlined in Information A17982 are:

THAT on the 3rd of July 2024, at the Rotorua 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 – Cocaine, 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 Rule 803 of the Rules.

The Rules

[6] The Rules relevant to the charge and penalty are as follows:

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.

Penalty Provisions

[7] The relevant penalty provisions are:

Rule 803(3) provides:

Subject to Rule 803(2)(b), where any 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 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 Licenceholder 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,

Consequences of Disqualification and/or Suspension

[8] Rules 1101-1107 set out the consequences of a disqualification and/or suspension.

Plea and Dealt with on the Papers

[9] The Respondent advised that he admits the charge and sought to have it determined ‘on the papers’ pursuant to Rule 914 which provides that:

A defendant who does not appear at the hearing of the Information may admit the breach of these Rules alleged in that Information by giving written notice to the Adjudicative Committee that he does so and in such event the Adjudicative Committee shall have the same power to deal with him as if he had appeared before it and admitted that breach.

Summary of Facts / Evidence

RIB Investigator Mr R Carr submitted an agreed Summary of Facts. The key salient points are as follows:

[10] The Respondent, who is aged 37 years,  is the holder of a Class A [ Jockey ] Licence issued by NZTR.

Circumstances of the offence

[11] On Wednesday 3 July 2024, RIB Investigators conducted routine drug screening at Arawa Park Rotorua, which was hosting a Racing Rotorua Club Meeting.

[12] The Respondent completed riding engagements in several races that day, including races 1,4 and 6. In total, 20 Jockeys nominated for riding engagements that day, were selected for drug screening. The Respondent was one of those Jockeys.

[13] The Respondent was served with a Drug Testing Notification Form requesting he present at The Drug Detection Agency (TDDA) vans for on-site testing. He subsequently presented at TDDA van and following completion of the appropriate documentation, he consented to undertake drug screening by way of provision of a urine sample.

[14] The urine sample was forwarded to the Environmental Science and Research Limited (ESR) for analysis.  On  Wednesday 10 July 2024 , the ESR provided a Certificate of Analysis and confirmed that the urine sample provided by the Respondent was ‘Not Negative’ to Cocaine. Being positive to Benzoylecgonine, a metabolite of Cocaine. Cocaine is a Class A Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[15] On Thursday 11 July 2024, an RIB Investigator attended the Respondent’s place of residence to advise him of the positive result.

[16] When questioned as to Cocaine consumption, the Respondent adamantly denied snorting Cocaine, but admitted to having been at a friend’s address in Cambridge on the evening of Saturday 29 June 2024, where he was aware of drug use.

[17] He further alleged while at the friend’s address that evening, he was informed by the female host that a non-alcoholic drink that he had consumed could have had a cocaine cap in it.

[18] The Respondent denies having any knowledge of the drink having cocaine in it, until he had finished consuming the drink. With the host remarking – “I’m pretty sure one of the boys put something in the drink.”

[19] The Respondent alleges that he did not think a lot about it at the time and didn’t feel any different. He estimates that he had four to five non-alcoholic beverages before driving home.

[20] The Respondent has admitted to knowingly using Cocaine previously, approximately two years ago while not riding.

[21] The RIB notes that when testing for Cocaine, urine tests may test for Cocaine itself or its metabolite, Benzoylecgonine. A urine test can directly test for Cocaine for a day or less, but will detect Cocaine metabolites for a few days – usually 1-2 days. Prolong use, large doses, and very pure Cocaine may have a slightly longer detection window.

[22] The Respondent was subsequently served with a copy of the ESR Certificate, along with a Standdown Notice dated 11 July 2024.

[23] He has no previous judicial history involving controlled drugs. However, it is noted that two historic offences exist.  These two offences relate to the Respondent making a false statement and falsifying documentation to RIU Stipendiary Stewards at Otaki on 29 November 2007, resulting in a 6-month disqualification.

[24] The Respondent was granted an exemption to return to race riding in October 2023, post having his Riding Licence being revoked by NZTR, after being convicted of an offence in Open Court in July 2021.

Explanatory Note – the exemption was sought and granted pursuant to Section 40 of the Racing Industry Act 2020, because due to his conviction, the Respondent was deemed to be a Prohibited Person.

File Minutes (1) and (2)

[25] On 22 July 2024, the Adjudicative Committee issued File Minute No. 1.  Based on the information disclosed in the Summary of Facts, as per his explanation to RIB Investigators, the Respondent was invited to submit notice of his Affirmative Defence to the charge, Rule 917 refers.

[26] On 25 July 2024, the following email response was received from the Respondent:

“I Matthew Cameron do stand by my original statement with I was at a gathering of a couple of friends and few people I didn’t know.

 I was aware that there were drugs at the property with no intention of myself consuming any.

 I would like to clear up that my drink wasn’t spiked as I see drink spiking a little different to what I have said.

I was aware that people were Putting Caps of cocaine into there [sic] drinks, and I was unlucky that someone had put one of them into the drink I was drinking not knowing it was mine or intentionally doing it to me.

There were a lot of drinks around and a lot of different glasses.

I was aware afterward that my drink had cocaine put into it after I had consumed it.

 I’m not denying that cocaine was in my system.

All I can say is there was no intention to go to this gathering and consume the drug”.

[27] On 26 July 2024, the Adjudicative Committee issued Minute No. 2, requesting a copy of the statement made by the Respondent during his interview on 11 July 2024.  In response, the RIB has provided a copy of the notebook interview and related Job Sheet, which has been attached as an addendum to the RIB’s Penalty Submission.

Submissions as to Penalty (RIB)

[28] Mr Carr, on behalf of the RIB, provided detailed written penalty submissions.  These are summarised below.

Introduction

[29] The Respondent is the holder of a Class A [Jockey] Licence issued by New Zealand Thoroughbred Racing [NZTR].  He has admitted a breach of the Rules following his provision of a urine sample on 3 July 2024, positive to the Class A Controlled Drug – Cocaine.  As outlined in paragraph [24], the Respondent had previously been granted an exemption to return to race riding in October 2023.

Background

[30] NZTR 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.

[31] All Riders are aware of the policy and the consequences should they not comply. The testing is conducted to maintain a safe and healthy workplace and to maintain the integrity of the Industry.

Details of the Offence

[32] The details of the Respondent’s offending are contained in the Summary of Facts, which have been agreed – refer paragraphs 11 to 24.

[33] In response to the explanation offered by the Respondent, RIB Investigators undertook enquiries with the ESR Toxicology Department. A member of the ESR Forensic Toxicology Team with 31 years’ experience, when provided with the Respondent’s explanation, stated that in all her time, she has never had a case where a person has used Cocaine by way of ingestion through drinking the drug. She went on to say, that Cocaine users predominantly snort or inject the substance, as to get the drug into the bloodstream and to the brain by the quickest possible means.

Sentencing Principles

[34] The RIB highlighted the following four principles of sentencing:

• 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 behaviour in question.
• The need to rehabilitate the offender should be taken into account.

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

Precedent Cases

[36] Historical penalties for breaches of the Industry Drug Laws, show some divergence dependent on the type of drug, the amount of the drug in the system and additional circumstances.

[37] The RIB submits that there are no identified charges and/or penalties for Industry participants, across all Codes, having returned a positive drug test to the Class A Controlled Drug Cocaine.

[38] Although there are no directly comparable NZ cases, the RIB advise that a number of Cocaine related cases have emerged in Australian racing jurisdictions.  For example:

[39] Apprentice Rider F Collins (Oct 2023) – after fulfilling trackwork duties at Albury Race Club on the morning of Monday, 9 October 2023. Upon analysis, the sample was found to contain banned substances under AR136(1) above the respective threshold, namely Benzoylecgonine and Ecgonine Methyl Ester, metabolites of Cocaine. She plead guilty, and received an imposed penalty of 9 months suspension, reduced to 6 months suspension for guilty plea.

[40] Jockey P Scorse (April 2023) Upon analysis of a sample provided, it was found to contain the substance, Benzoylecgonine the metabolite of Cocaine. He pleaded guilty and received a penalty of 12 months suspension of his Jockey Licence in full.

[41] Jockey K Gladwin (January 2017) An analyst’s report of the urine sample provided on Saturday 3 December 2016, by Jockey Mr Kim Gladwin. The analyst reported the presence of Cocaine at a level in excess of the threshold permitted under AR81B. Mr Gladwin subsequently pleaded guilty to a charge and a penalty by way of a 12-month suspension of his Licence (in full) was imposed, backdated to take effect from when he was stood down.

Aggravating Factors

[42] The RIB submits that the Respondent has acknowledged and understands the use of Cocaine is prohibited under the Rules.

Mitigating Factors

[43] The RIB submits that the Respondent has cooperated fully with Investigators and admitted the charge at the earliest opportunity, although denying that he had knowledge or intent to use Cocaine prior to its consumption.

[44] The Respondent has stated that he understands the consequences of his actions.

[45] The Respondent was directed to cease from riding or performing any safety sensitive activity upon receiving the screening result on 11 July 2024, with his Licence being withdrawn pursuant to Rule 657(1)(b).

Conclusion

[46] When determining penalty, the RIB submits that the Adjudicative Committee has regard to the purpose of the proceedings, which includes: to ensure the Rules are complied with; to uphold and maintain the high standards expected of Jockeys and those undertaking safety sensitive activities; and to protect the integrity of Thoroughbred Racing.

[47] The RIB acknowledges the Respondent’s explanation as to the alleged method of consumption of the Cocaine, although it questions the veracity of this explanation, when considered against information received from the ESR Forensic Toxicology Team – refer paragraph 33.

[48] The RIB adopts a starting point penalty of a 12-month disqualification on the Cocaine charge, with any appropriate adjustments considered and taken into account by the Adjudicative Committee, for mitigating and aggravating factors.

[49] The RIB seeks the costs of the ESR analysis of $187.50.

[50] The RIB advise that the Respondent was offered a referral to a Vitae Alcohol and Drug Clinician provided by the NZ Racing Industry for an assessment and assistance. This assistance was politely declined, due to the Respondent acknowledging that he was already engaged with a locally based support person.

Submissions as to Penalty (Respondent)

[51] In relation to his offending and penalty, the Respondent Mr Cameron submitted:

“In reply with the penalty submissions I agree with knowing that having a banned substance in my system while at a race meeting is a serious offence. 

I have pleaded guilty and been very cooperative without any hesitation. 

I have worked super hard to get to where I am after the last couple of years which have not been easy. 

I have not had a drop of alcohol for over 2 years now to rebuild myself as a person and a jockey.

As most people know I’m a hard working jockey who is a respected professional while at races and have the utmost respect for others while riding. 

 I put myself in a situation that night which clearly was not a great decision. 

I agree with there being a stand down period for myself for the rules I have broken. 

I have never had any judicial history involving controlled drugs in the past. 

I am pleading to have the recommended 12 months disqualification from the RIB Mr Carr reduced for the explanation I have provided.” 

Decision – Penalty and Reasons

The Factual Situation

[52] On Wednesday 3 July 2024, at the Racing Rotorua Club Meeting held at Arawa Park Rotorua, the Respondent, Class A Rider Matthew Cameron provided a urine sample which upon analysis, indicated a positive to Benzoylecgonine, a metabolite of Cocaine. Cocaine is a Class A Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[53] By virtue of the positive result, the Respondent is in breach of Rule 656(3), which is a strict liability offence. This simply means, to a large extent, it is immaterial whether or not the Respondent had any intention of breaching the Rule.

[54] The Respondent has admitted the offence, but has raised an Affirmative Defence.

[55] The circumstances of the offence are contained within the agreed Summary of Facts (refer paragraphs 11 to 24).

Penalty Considerations

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

56.1 The supporting evidence provided in terms of the weight to be given to the Affirmative Defence.

56.2 The written submissions lodged by the Applicant and the Respondent.

56.3 The various mitigating and aggravating factors have been considered.

56.4 The Respondent’s culpability and personal circumstances have been assessed.

56.5 The Respondent’s record has also been evaluated.  It was noted that he incurred a 6 month disqualification in 2007 for providing a false/misleading statement – (refer paragraph 23). The Adjudicative Committee accepts that this is an historical matter, and the Respondent has a clear record, in terms of drug offending.  However, it is of relevance in terms of assessing the Respondent’s explanation concerning what occurred at the undisclosed address in Cambridge on the evening 29 June, when an unnamed person or persons placed Cocaine in drink(s) that he unintentionally drunk – or drunk, not knowing they contained the said drug. Also noted by the Adjudicative Committee, was a non-racing matter that resulted in a criminal conviction (2021), and the revocation of his Riding Licence and the granting of an exemption to return to race riding in October 2023 by NZTR.

56.6 Finally, in determining the penalty, the Adjudicative Committee was aware of the need to ensure that the sanction imposed, appropriately operates as a means of deterrence, denunciation, and accountability. In this regard, the Adjudicative Committee is mindful that the penalty  imposed must (i) deter others who may contemplate breaching NZTR’s Drug Use Rules and Policies; (ii) that a Jockey must take extreme care when putting him or herself  in an environment where drug use is prevalent due to the risk of contamination; and (iii) those who offend are held to account, balanced with the need for them to be given the opportunity to take part in rehabilitative measures or programmes.

Discussion

The Affirmative Defence

[57] The Adjudicative Committee firstly had to consider the merits or otherwise of the Affirmative Defence that was raised by Respondent pursuant to Rule 914.

[58] Whereas, as a general rule, the burden of proof is the responsibility of the prosecuting agency (the RIB), that burden shifts when a Respondent raises an affirmative defence. Therefore, for the defence to succeed, the onus is on the Respondent to provide the Adjudicative Committee some compelling or cogent evidence in support of his defence.

[59] The Respondent submitted that although he admits the offence, the positive drug test result arose because he mistakenly drank a non-alcohol drink which he was later told contained Cocaine. In that regard, he said that he attended a social gathering with some friends and other unknown persons and that “I was aware that people were putting caps of cocaine into there [sic] drinks and I was unlucky that someone had put one of them into the drink I was drinking not knowing it was mine or intentionally doing it to me. There were a lot of drinks around and a lot of different glasses. I was aware afterward that my drink had cocaine put into it after I had consumed it”.

[60] The RIB in their submission, questioned the veracity of the Respondent’s explanation and in that regard, they sought advice from an ESR Scientist, of 31 years’ experience, about the likelihood of this. The scientist’s opinion, as outlined at paragraph 33 was that in all her time, she has never had a case where a person has used Cocaine by way of ingestion through drinking the drug. She went on to say that Cocaine users predominantly snort or inject the substance as to get the drug into the bloodstream and to the brain by the quickest possible means. It is also noted at paragraph 21 of the agreed Summary of Facts that a urine test can directly test for Cocaine for a day or less but will detect Cocaine metabolites for a few days – usually 1-2 days. Prolong use, large doses, and very pure Cocaine may have a slightly longer detection window.

[61] Ultimately, the Adjudicative Committee concluded that the affirmative defence raised by the Respondent, is of limited material value and fails because:

1. The Respondent has admitted the charge.
2. The offence is one of strict liability and the offence was complete when the Respondent chose to ride at the Rotorua Race Meeting, knowing he may have consumed a drink containing Cocaine.
3. The RIB has discharged its burden in that they have proved their case by means of scientific evidence confirming that when the Respondent presented to ride in races, he had previously consumed the Class A Drug Cocaine.
4. Other than his explanation, the Respondent has not produced any compelling evidence in support of his defence. He could have, for example, provided the RIB Investigator with at least some information upon which his explanation could have been checked out and corroborated. For example, had he chosen to, he could have provided details of the undisclosed address in Cambridge, or the name of the host who is said to have remarked, (refer paragraph 18) “I’m pretty sure one of the boys put something in the drink.” Further, his explanation does not fit with the detection period (see para 21) of usually 1 to 2 days for normal Cocaine use. There was at least a 3 day gap between ingestion on Saturday 29 June and testing on Wednesday afternoon 3 July 2024.
5. Accordingly, the Adjudicative Committee is not persuaded by the cogency of the Respondent’s defence, and at best, even if it is accepted that the Respondent consumed the Cocaine by mistake (or by some involuntary means), it is only a matter of potential relevance in mitigation of penalty.

[62] Knowing that he was “aware lots of people were putting caps of Cocaine into their drinks”, the Respondent should have at least taken greater care to protect his drink. Moreover, after having been told by the host of the gathering that his drink had Cocaine put into it after he had consumed it, he chose to stay at the premises, and he clearly, gave no thought to the possibility of environmental contamination. Furthermore, given this background, he chose to fulfil his riding engagements at the Rotorua Race Meeting.  To his credit, in his penalty submission, he acknowledges this by saying…. “ I put myself in a situation that night which clearly was not a great decision”. 

Precedent Cases

[63] There are no recent charges and/or penalties for Industry participants, across all Codes, having returned a positive drug test to the Class A Controlled Drug Cocaine.

[64] The RIB, in their submission, have provided three Australian Thoroughbred Racing cases relating to Cocaine use by Riders which have resulted in penalties ranging from 6 to 12 months suspension.

[65] The Adjudicative Committee is aware of a number of recent cases in New Zealand involving NZTR Licensed Track Riders and Jockeys who have returned a positive to the Class A Controlled Drug Methamphetamine.  The cases are helpful to the extent, that they relate to the same class of Drug (Class A) as Cocaine.  For example:

[66] RIB v T Moki (February 2023) – Class D Jockey – Positive to Methamphetamine; 12-months disqualification and costs of $187.50 for sample analysis.

[67] RIB v K McDonald & D Scott (October 2022) – McDonald (Stablehand) and Scott (Trackwork Rider) – 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.

[68] RIB v J Smith (August 2022) – Stablehand – Positive to Methamphetamine; disqualified for 12 months, with a 3-month suspension upon successfully completing rehabilitation treatment with the Salvation Army.

In its Written Decision in this case, the Adjudicative Committee commented:

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.

[69] 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.

[70] 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.

In its Written Decision in this case, the Judicial Committee commented:

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.

Culpability

[71] The Respondent’s level of culpability is assessed as being above mid-range. By his own admission, he chose to attend Rotorua Races, knowing that four days earlier, he may have consumed a drink containing Cocaine.

[72] The Respondent took a calculated risk by attending the race meeting to fulfill his riding engagements. The Respondent has not explained why he took such a risk – perhaps he hoped there would be no testing undertaken at the meeting, and/or if there was testing, the drug would have dissipated.

[73] The Respondent had options available to him, the obvious one being that he could have stood himself down. Therefore, his decision to ride at the meeting was a gross error of judgement on his part.

Starting Point Penalty

[74] The Adjudicative Committee does not differentiate between Methamphetamine and Cocaine.  Both have been classified as Class A Drugs and both are said to be extremely harmful to individuals and society.  Given the penalties imposed in the various precedent New Zealand cases and in consideration of the facts, and its assessment of the Respondent’s culpability, the Adjudicative Committee adopts a starting point penalty of 12 months disqualification.

Aggravating and Mitigating Factors

[75] The RIB outlined detailed aggravating and mitigating factors in paragraphs 42 to 45. The Adjudicative Committee has noted, and by and large, these are accepted.

[76] The Respondent outlined mitigating factors in paragraph 51.  Of particular note these include and are accepted:

• The Respondent entered an early guilty plea and has cooperated with the investigation.
• The Respondent accepts that he put himself in a situation that night which clearly was not a great decision. 
• The Respondent has a clear record with regards to drug offending.
• The Respondent has asked the Adjudicative Committee to consider a penalty less than the 12 months recommended by the RIB.

Aggravating Factors

[77] In its assessment of the aggravating factors, the Adjudicative Committee believes that as a senior and very experienced Rider, the Respondent should have recognised the risk of riding at Rotorua, after becoming aware he had inadvertently ingested Cocaine. To elect to ride in this knowledge, could be considered at worst, reckless, and at best, thoughtless. Furthermore, the Respondent was granted an exception by NZTR, to return to race riding following an earlier indiscretion.  For that to occur, his supporters would have put their faith in him and he has now let them down. The Adjudicative Committee was particularly mindful of these factors, when determining that 12 months disqualification should be the starting point.  Therefore, the Adjudicative Committee does not propose a further penalty uplift from that starting point, but notes his poor decision making is an aggravating factor that it has considered and that he now acknowledges this.

Mitigating Factors

[78] In the Adjudicative Committee’s assessment of mitigating factors, the Respondent is given credit for his early guilty plea and cooperation, which includes agreeing to have the matter dealt with on the papers, thus avoiding the need for a costly hearing.

[79] The Respondent was placed on standdown on 11 July 2024.  On that basis, his earning capacity has been curtailed since that date.  In some of the precedent cases, time spent on standdown has been taken into consideration when setting penalty.  However, it was determined in the Appeal Decision J Smith v RIB (2022) that:

…there is no power to backdate a starting date of a disqualification. Our reasons for that are as follows:

1. a) Pursuant to Rule 1101(1) “Each disqualification…will take effect immediately, unless the Tribunal imposing the disqualification imposes a later date.” The wording of this section is clear. A disqualification takes effect immediately unless deferred. Nothing in the section permits the backdating of a disqualification. It cannot be said that this is an oversight as the Rules specifically address when a disqualification is to commence.
2. b) It is noted that disqualification is not the same as a suspension of a licence or a person being stood down. Pursuant to Rule 1104, a disqualification requires there to be several disabilities on the qualified person. They exist from the date it is made. A suspended person may do a number of things that a disqualified person may not. Therefore, if the order were to be backdated, a disqualified person may well have done a number of things that they were not permitted to do pursuant to a disqualification during the backdated period. This would render the disqualification nugatory and arguably create confusion.

2.3. While the Appeals Tribunal is clear that backdating is not permitted, it does not follow that the standdown or suspension period has no relevance to the penalty to be imposed. It is a mitigating factor that must be considered.

[80] Accordingly, the Adjudicative Committee treats the time spent on standdown (4+ weeks) as a mitigating factor.

[81] After considering the above, the Adjudicative Committee determined a 3 month reduction from the 12 month starting point is a fair and reasonable reflection of the Respondent’s offending.  Thus, arriving at an end point penalty of 9 months disqualification.

Rehabilitation

[82] As noted in para [50], the RIB offered the Respondent a referral to a Vitae Alcohol and Drug Clinician provided by the NZ Racing Industry for an assessment and assistance. This assistance was said to have been politely declined, due to the Respondent acknowledging that he was already engaged with a locally based support person.

[83] In addition, the Respondent’s defence was that he was not a user of Cocaine, and its ingestion had been accidental, and he has maintained that he never intentionally used Cocaine at the social gathering in Cambridge on the evening of Saturday 29 June 2024. However, at paragraph 20 of the agreed Summary of Facts, the Respondent admitted to knowingly using Cocaine previously, approximately two years ago while not riding.

[84] On that basis, given the overall circumstances of this matter, the Adjudicative Committee is of the view that the Respondent should provide a clear drug test before his Jockey’s License is reinstated.  In that regard, the Adjudicative Committee has taken guidance from the Appeals Tribunal Decision D Smith v RIB (Nov 2022) where it was said that:

With reference to the Lockett case …We are of the view that Mr Smith should be given a similar opportunity to shorten his disqualification period if he proves that he is drug free for a significant period. There is merit in this approach because it encourages proper rehabilitation and is therefore in the interests of animal welfare and ensuring that Licensed people are not affected by illicit drugs. In our view, it is preferable to Mr Smith simply serving the full disqualification period and then re-entering the Industry.

…. In the circumstances of Mr Smith maintaining he has not ever consumed Methamphetamine the Appeals Tribunal considered drug counselling or rehabilitation inappropriate, however provides Mr Smith the opportunity to demonstrate by regular drug tests that, as he asserts, he is not a user of Methamphetamine.

…In the event Mr Smith voluntarily and at his own cost undertakes bi-monthly drug tests commencing in December 2022 and concluding in February 2024, and each of the tests are negative the remaining period of Mr Smith’s disqualification will be suspended from 26 February 2024.

[85] Therefore, by adopting the same conditions that were set for D Smith by the Appeals Tribunal, the Adjudicative Committee directs that if the Respondent is willing to complete a minimum of three voluntary drug tests during the concluding four months of his period of disqualification, and those tests demonstrate he is drug free, the final one month of his disqualification will be waived. This is subject to:

1. The testing is to be undertaken by The Drug Detection Agency.
2. The testing is to be hair/follicle testing with the costs of testing and sample collection met by the Respondent.
3. The test results are to be provided to and assessed by an RIB Investigator, with a summary and recommendation provided to NZTR upon completion of the period of the three drug tests.

[86] Suspension of the remaining one month of his disqualification will take effect from the date of this Decision.  Therefore, for the sake of clarity, the Respondent’s 9 month period of disqualification will commence from 14 August 2024 and will conclude after racing on 13 May 2025. But, if by 13 April 2025, the Respondent provides three clear drug tests and the RIB and NZTR support reinstatement of his Jockey’s License, he can resume race riding from 14 April 2025.

Penalty and Costs:

[87] The Respondent is disqualified for a period of 9 months, commencing on 14 August 2024. The Respondent is ordered to pay $187.50 to the RIB, being the cost of the ESR drug testing.

[88] If the Respondent meets the conditions set out in paragraphs 85 and 86, the final one month of his disqualification will be waived.