Non Raceday Inquiry – Written Penalty Decision dated 18 January 2024 – Reece Cole

Introduction

[1] This is the Penalty Decision arising from a charge lodged against Licensed Class B (Thoroughbred) Trainer Reece Stephen Cole (the “Respondent”) by Racing Integrity Board (RIB) Investigator, Mr R Carr (the “Applicant”). Information No. A17977 refers.

Particulars of the charge are:

THAT the Respondent on 7 December 2023 while undertaking a Safety Sensitive Activity by riding trackwork at the Matamata 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 – THC/Cannabis, being a Class C Controlled Drug as defined in the Misuse of Drugs Act 1975. Being in breach of Rule 656(3) of the NZTR Rules of Racing and is therefore subject to the penalty imposed pursuant to Rule 803(3) of the Rules.

The Rule

[2] NZ Thoroughbred Rules (NZTR) of Racing (“the Rules”) relevant to this hearing are Rules 656(3) which establishes the elements of the offence, Rule 803(3) which sets out the Penalty Provisions and Rule 812 which empowers the Adjudicative Committee to consider counselling and rehabilitation.

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:

Rule 803(3)

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,

Rule 1106(1) – Suspensions

A person who has been suspended from holding or obtaining a Licence shall not, irrespective of whether such suspension has been duly notified in accordance with any of the preceding Rules in this Part XI, during the period of the suspension: [Amended 3 October 2023]

(a) undertake any work, perform any function, or enter any area on a Racecourse on a Raceday, for which the Licence is required, without the prior written consent of NZTR; and/or [Amended 3 October 2023]

(b) be employed or work or assist in any capacity in connection with the care, control, training or riding of a horse. However, where the person so suspended was the Holder at the time of his suspension of both a Trainer’s Licence and a Rider’s Licence and the suspension relates to the Rider’s Licence only, then such person may train any horse and, with the prior consent of the Stipendiary Stewards for a particular Race Meeting (which may be revoked at any time) and for the purposes only of carrying out his work as a Trainer, may enter the weighing room on the relevant Racecourse on any day of such Race Meeting. [Amended 3 October 2023]

Rule 812

[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 provides 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 – On the Papers

[5] The charge was dealt with, by agreement, on the papers. As such, this averted the need to conduct what may otherwise have been a costly ‘in person’ hearing.

General Information

[6] Pursuant to Rule 903(2)(d), the RIB Chief Executive, Mr M Clement has authorised the filing of Information No. A17977, alleging that the Respondent was in breach of Rule 656(3) on the said date.

[7] Full particulars of the charge are contained within Information No. A17977 and at paragraph 1 of this Decision.

The Plea

[8] The Respondent has admitted the charge. On that basis, it is deemed to be proved.

Summary of Facts

The key salient points are as follows:

[9] The Respondent is the Holder of a Class B Trainers Licence issued by New Zealand Thoroughbred Racing [NZTR].

[10] He currently has a total of six horses registered in training with NZTR.

[11] On Thursday 7 December 2023, Investigators from the RIB conducted routine drug screening at the Matamata Racecourse and surrounding Thoroughbred training establishments.

[12] The Respondent was observed undertaking a safety sensitive activity at the Matamata Racecourse and was one of 12 people selected for testing who were performing a safety sensitive activity that day.

[13] Following service of a Drug Testing Notification Form, the Respondent acknowledged that he understood and accepted the Notice. He presented himself at The Drug Detection Agency (TDDA) van for testing on-site and provided a urine sample. 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.

[14] On Tuesday 12 December 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 150ng/ml. Cannabis is a Class C Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[15] The same day, the Respondent was contacted and advised of the positive result. He was issued a Stand Down Notice as a result of the positive test result.

[16] When spoken to, the Respondent admitted to smoking Cannabis a couple of times a week to assist him with sleeping and pain relief for an historic injury. He further stated – “I attended a party in Matamata on the weekend prior to the testing and would have smoked 1 – 2 joints while there.”

[17] He has a clear judicial history.

Submissions as to Penalty – Applicant

By way of Written Penalty Submissions on behalf of the RIB, Mr Carr submitted that:

[18] The Respondent is the holder of a Class B Trainers Licence and has been Licenced in the Industry since June 2014, where he has held previous NZTR Licences including Class A, B and D (Rider) and Stable Hand.

[19] The Respondent has admitted a breach of the Rules following his positive test result to the Class C Drug Cannabis (THC). Offence details are contained in the agreed Summary of Facts commencing at paragraph 9.

[20] 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 influence of drugs.

[21] All Riders should be 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.

Sentencing Principles

[22] The four principles of sentencing can be summarised briefly:

• Penalties are designed to punish the offender for 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.

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

Precedent Cases

[24] Historical penalties for breaches of the Industry Drug Rules show some divergence dependent on the type of drug, the amount of the drug in the system. The RIB referred to the following recent like cases relating to Thoroughbred participants.

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 R Wiles (29.09.2023) – Trackwork Rider – Level >500 ng/mL; six weeks suspension (5 weeks on provision of negative drug test) and costs of $187.50 for sample analysis.

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.

[25] A number of recent Harness Driver cases were also submitted for comparison. These cases resulted in broadly similar penalties, albeit there are penalty differentials between Thoroughbred and Harness Codes.

Aggravating Factors

[26] The RIB identified the following factors that it submits are aggravating features of the Respondent’s offending:

1. The Respondent acknowledged and understood that Cannabis is a Class C Controlled Drug and that its use is prohibited under the Rules.
2. When interviewed regarding the positive test result, the Respondent stated that he “smokes Cannabis a couple of times a week to assist him with sleeping and pain relief for an historic injury.” He admitted to having last used: – “I attended a party in Matamata on the weekend prior to the testing and would have smoked 1 – 2 joints while there.”
3. The Respondent was offered a referral by the RIB to a Vitae Alcohol and Drug Clinician provided by the NZ Racing Industry for an assessment and assistance, the Respondent never acknowledged this assistance.

Mitigating Factors

[27] The RIB identified the following factors that it submits are mitigating features of the Respondent’s offending:

1. The Respondent entered an early guilty plea and accepted full responsibility for the positive test result.
2. The Respondent has been compliant, cooperative, and respectful with all RIB staff throughout the process.

Conclusion

[28] Enquiries were undertaken with NZTR on disclosure of Standdown Notice pursuant to Rule 657(1) (b) on 12 December 2023, regarding the welfare needs of the horses in the Respondent’s care as per his Class B Trainer’s responsibilities. NZTR confirmed that although the Respondent will be stood down from riding trackwork, they will permit the Respondent to “care for his horses to the extent that they are exercised for welfare consideration only – walk, trotting and maybe a slow canter, no galloping. They should not be exercised for the purpose of preparing them for races.”

Penalty Submission

[29] The RIB submits that a six week suspension of the Respondent’s Class B Trainers Licence, backdated to 12 December 2023 when he was stood down, and also the cost of the ESR analysis of $187.50 are sought, payable to the RIB.

Submissions as to Penalty – Respondent

[30] The Respondent was afforded the opportunity to lodge penalty submissions, but he elected not to do so.

Decision

[31] The Adjudicative Committee has determined that an appropriate penalty is an 8-week suspension, of which 2 weeks is stayed (provisions of Rule 812(b) refer). The stayed two weeks is effective and conditional upon the Respondent providing a clear drug test at his own expense. The Respondent’s Class B Trainers Licence is suspended for a period of 6 weeks if the precondition is met. Otherwise, his suspension will encompass the full 8 week period.

Reasons

[32] The Penalty Guide does not provide a starting point and on that basis, breaches of this Rule are determined on a fact dependent basis. As was highlighted by the RIB in their submissions, there has historically been a divergence of penalties imposed and guidance can be taken from precedent cases.

[33] The Respondent does not have to lodge penalty submissions and on this occasion, he chose not to do so. But it is generally helpful when assessing penalty, for an Adjudicative Committee to hear from a Respondent in terms of any special or personal circumstances that they would like to be taken into account.

[34] In consideration of the factors discussed in the following paragraphs, the Respondent’s level of culpability is assessed as mid-range.

[35] The Adjudicative Committee had due regard for the need to impose a penalty that denounces drug use by Industry participants, when engaged in safety sensitive activities. Furthermore, any penalty imposed must also operate as a deterrent to others who may contemplate breaching the Thoroughbred Code’s Drug Use Rules. Therefore, with these considerations in mind, the Adjudicative Committee evaluated the circumstances of the offence, as outlined in the agreed Summary of Facts, as well as the factors raised by the RIB in their penalty submissions and determined this to be in the mid-range.

[36] The mitigating and aggravating factors outlined by the Applicant were carefully considered. It was said that the Respondent’s admission, his cooperation with the investigation, and his good record, should be taken into account and treated as mitigating factors. The Adjudicative Committee agrees with those sentiments, except it may have been helpful in terms of his said cooperation, had the Respondent followed up on the referral offer made by the RIB for him to meet with a Vitae Alcohol and Drug Clinician provided by the NZ Racing Industry for an assessment. The RIB submitted that their offer of assistance was never acknowledged by the Respondent.

[37] Had the Respondent demonstrated a willingness to partake in an assessment or counselling, it may well have been viewed by the Adjudicative Committee, not only as a step in the right direction towards rehabilitation, but also as a compelling mitigating factor. Particularly so, given that the Respondent admits to being a regular Cannabis user, for what he describes as assistance with his sleeping and also pain relief for a previously incurred injury.

[38] It is a worrying aspect of this breach, that there is no information presented suggesting that the Respondent’s drug use has discontinued. Cannabis use is incompatible with the safety sensitive tasks, responsibilities, and good character requirements of a Class B Trainer. Therefore, if he hasn’t already done so, he must desist from his ongoing use and seek an alternative medication to enable him to sleep better and for pain relief.

[39] These issues, which were raised by the Respondent, relating to sleep and pain do not necessarily mitigate his offending, nor do they reconcile with his explanation to the RIB Investigator indicating that he “ attended a party in Matamata on the weekend prior to the testing and would have smoked 1 – 2 joints while there.” Quite clearly, at the time he was smoking Cannabis at the party, he was not doing so for pain relief or to enable him to improve the quality of his sleep.

[40] On that basis, his ongoing Cannabis use and his admission that he smoked Cannabis at a party on the weekend prior to testing, demonstrates that it is more probable than not, that his use of Cannabis cannot be characterised as a ‘one-off use’ or experimentation.

[41] No information or evidence has been presented suggestive of remorse or contrition.

Precedent Cases

[42] The RIB submitted five precedent cases, where it was said that the offending was broadly of a similar nature to this breach. Penalties in those cases ranged between 5 and 8 weeks (suspension). The precedent penalties in the main relate to either Trackwork Riders, Licensed Class A and B Riders and a Licenced Stable Hand. No precedent cases relating to a Licensed Trainer were presented. Harness Driver cases were also submitted, but are of limited value.

[43] As a Licensed Class B Trainer, the Respondent not only rides trackwork, but he also has significant duties and obligations to manage and care for his horses. This onus of responsibility is high due to health and safety and horse welfare obligations, Trainers by necessity must adhere to.

Conclusion

[44] The Respondent was stood down on 12 December 2023. As a consequence, he has not been able to undertake the full range of duties required of him as a Licensed Class B Trainer. In consultation with NZTR, restrictions were placed on his Stand Down, limiting his training activities and tasks so that he has been able to “care for his horses to the extent that they are exercised for welfare consideration only – walk, trotting and maybe a slow canter, no galloping. They should not be exercised for the purpose of preparing them for races.”  The purpose of requiring stand down is for safety / animal welfare reasons and not to needlessly punish further or add to any penalty to be imposed. However, time spent on stand down is a factor to be taken into account.

Penalty

[45] The Respondent’s Class B Trainers Licence is suspended for 8 weeks, of which 2 weeks is stayed conditional upon the Respondent providing a negative drug test at his expense.

[46] The period of suspension is backdated to 12 December 2023 (this being the date when he was stood down) and with 2 weeks stayed, will conclude on 23 January 2024 if the Respondent provides a clear drug test result. If not, the suspension will conclude on 6 February 2024.

Costs

[47] Costs of $187.50, being the cost of the sample analysis carried out by the ESR, are awarded in favour of the Applicant.

[48] This charge was dealt with on the papers. On that basis, no costs are sought or awarded in favour of the RIB or Adjudicative Committee.