Non Raceday Inquiry – Written Penalty Decision dated 28 July 2023 – Nathan Delany

Introduction

[1] This is the Penalty Decision arising from a charge lodged against Licensed Trainer and Junior Driver Mr N Delany (the “Respondent”) by Racing Integrity Board (RIB) Investigator Ms C Fox (the “Applicant”) alleging that he provided a urine sample that tested positive to the Class C Controlled Drug Cannabis.

[2] The Respondent was assisted at the hearing by Licensed Trainer Mr E Clarke.

The Charge

[3] Pursuant to Rule 1108(2), Mr M Clement, CE: RIB authorised the filing of Information No. A18510 alleging that Mr Delany was in breach of Rule 512(1) on the said date.

Information No. A18510 sets out the Particulars of the charge, namely:

That on Thursday the 29 June 2023 at Auckland Trotting Club, Alexandra Park, having been required by a Racing Investigator to supply a sample of your urine in accordance with Rule 212(1)(g) and 226(2)(d) of the New Zealand Rules of Harness 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 1003(1) of the Rules.

[4] Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relevant to this hearing, are Rule 512(1) and Rule 1003 (Penalty Provisions).  These are set out below:

Rule 512(1) provides:

Every Driver commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply 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.

Rule 1003 provides:

• A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:
• a fine not exceeding $10,000; and/or
• suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
• disqualification for a period not exceeding 12 months.

Rule 514(2A) provides:

A driver whose licence is suspended under Sub-Rule (1) or (2) of this Rule may not drive at any race meeting, trial or work out until a further sample is found upon analysis to be free of both controlled drugs as defined in the Misuse of Drugs Act 1975, and illicit substances.

RIB Penalty Guide

[5] The RIB Penalty Guide (Feb 2023) provides for an 8-week suspension as the starting point for a breach of Rule 512(1).

The Plea

[6] Prior to the hearing, during a teleconference held on 17 July 2023, the Respondent advised the Adjudicative Committee that he admitted the charge.  A consequence of his admission is that the charge is deemed proved (Rule 1003 applies).

Summary of Facts / Evidence

[7] The key salient points are as follows:

[8] The Respondent, is the Holder of both a Licence to Train and a Junior Drivers Licence, both issued by Harness Racing New Zealand (HRNZ).  He is 23 years old and has been licenced as a Junior Driver since 2017. He is employed by a Licensed Trainer based in Pukekohe.

Circumstances

[9] On Thursday 29 June 2023, Investigators from the RIB conducted routine drug testing at the ATC Final June Night meeting, held at Alexandra Park, in Auckland. The Respondent was observed in stables area of Alexandra Park and was scheduled to drive in Race 4, 7 and 9. He was one of 15 people selected for testing, who were performing a ‘safety sensitive activity’ that day.

[10] Having been served with a Drug Testing Notification Form advising that he was required to present at The Drug Detection Agency (TDDA) van for testing between 4:45pm and 9:00pm, the Respondent duly presented himself at the TDDA van and provided a sample.

[11] The sample was sent to Environmental Science and Research Limited (ESR) for analysis and on Thursday 6 July 2023, the ESR certified that the urine sample provided by the Respondent was positive to Cannabis at a THC level of >500ng/mL.  Cannabis is a Class C Controlled Drug, as defined in the Misuse of Drugs Act 1975.

[12] On 6 July 2023 the Respondent was advised of the positive result and later that same day was issued a stand down notice as a result via email.

[13] When spoken to regarding the result, the Respondent stated that he was unsure how the drug would be present in his system as he had not smoked Cannabis in over a year. He further stated that another person he associates with, often smoked Cannabis, but that he did not associate with that person when they were smoking Cannabis.

[14] The Respondent has no previous relevant charges.

Submissions by The Respondent

[15] In response to the Summary of Facts and as outlined in his Penalty Submissions submitted:

[16] That contrary to his initial explanation to the RIB Investigator that he didn’t know how the positive result arose and that he had not smoked Cannabis in over a year, it was submitted to the Adjudicative Committee that the Respondent now admits that he had a moment of weakness where he regretfully partook in Cannabis and gives his personal assurance this will not happen again (refer written submissions lodged by Mr Clarke).

Submissions as to Penalty (RIB)

In her written Penalty Submissions, Ms Fox submitted that:

[17] The Respondent has been involved in the Harness Racing Industry since 2016 (Trials Driver).  He was first licenced as a Junior Driver in 2017 and is also the Holder of a Licence to Train.

[18] The Respondent has admitted the Breach against Rule 512(1).

[19] All Harness Drivers are aware the testing is conducted for two reasons, first the need to maintain a healthy and safe workplace and secondly, to maintain the integrity of the Industry.

[20] Historical penalties for breaches of the Industry drug laws show some divergence. The type of drug, the situation, and the amount of the drug in the system adds to this divergence.

[21] RIB records indicate that the Respondent has once previously been tested which was negative and according to the Respondent, this was when he was 18 years old.

Penalty sought by RIB

[22] It is submitted that a six-week suspension of the Respondent’s Junior Drivers Licence (backdated to 06/07/2023 when he was ‘stood down’) be imposed.  Also, the costs of the ESR analysis of $187.50 (to the RIB) are sought. The RIB acknowledges that this penalty is less than the suggested Penalty Guide starting point of 8 weeks however, for consistency, it reflects the penalties received by both Drivers and NZTR participants for similar offending.

Offending

[23] The details of the Respondent’s offending are contained in the Summary of Facts.

[24] On this occasion, the Respondent was driving in Races 4, 7 and 9 of the ATC Final June Night meeting, held at Alexandra Park, whilst the drug THC (Cannabis – level >500ng/mL) was within his body.

[25] The ESR reported level of THC (>500ng/mL) is unhelpful in determining the use of Cannabis by the Respondent. The minimum level tested is 15ng/mL and a high level considered to be over 1000ng/mL.

Sentencing Principles

[26] The RIB submits that the following four principles of sentencing apply in this case.

• 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.

Precedent cases

[27] Recent penalties for Harness Drivers positive to the Class C Controlled Drug Cannabis are submitted (below), for the consideration of the Adjudicative Committee.

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.

[28] Recent penalties for NZTR Track Riders and Jockeys positive to the Class C Controlled Drug Cannabis are as below.

RIB v E WENN (12.01.2023) – Licenced Stablehand – Level >500ng/mL; six-weeks suspension and costs of $187.50.

RIB v C JONES (28.08.2022) – Apprentice Jockey – Level 190ng/mL; eight-weeks suspension and costs of $187.50. 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.

RIB v R WARD (10.08.2022) – Stablehand [non-riding] – Level 100ng/mL; six-weeks suspension with one week stayed subject to the Respondent meeting certain terms and conditions, and costs of $187.50.

RIB v R AUKETT (14.06.2022) – Track Work Rider – Level >230 ng/mL; six-weeks suspension and costs of $187.50.

Aggravating Factors

[29] The Respondent has acknowledged and understands that Cannabis is a Class C Controlled Drug, and the use is prohibited under the Rules.

[30] The Respondent has admitted to smoking Cannabis in the past however, when questioned regarding the positive result, he stated that he was unsure how the drug would be present in his system as he had not smoked Cannabis in over a year. It is noted by the Adjudicative Committee that he has recanted this explanation and now admits having smoked cannabis, presumably proximate to the test.

Mitigating Factors

[31] The Respondent entered an early guilty plea and now accepts full responsibility for his actions.

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

[33] He has had no previous relevant charges.

Submissions as to Penalty (Respondent)

In relation to penalty on behalf of the Respondent Mr Clarke submitted:

[34] The Respondent is aged 23 living and working in Pukekohe. He left school at 14 years to work in order to help his mother support his niece and nephew after his brother died suddenly. During this period, he has never been out of work or been in trouble which is a major achievement for one so young.

[35] The Respondent admits that he had a moment of weakness where he regretfully partook in cannabis use and gives his personal assurance this will not happen again.

[36] He works in the morning for Lincoln Farms Pukekohe and works his team of 6 horses in the afternoon with the help of his mother who works mornings as well, and his niece and nephew assist after school. It was pointed out to the Adjudicative Committee that the Respondent enjoys the full ongoing support of his employer Mr R Green.

[37] The Respondent is aware of the penalties that may be imposed for a breach of this nature and due to his circumstances, i.e., the potential for a suspension placing a financial strain on his personal well-being and the following penalty is sought:

37.1 That he receives a suspended sentence if he produces a clear test.  This will allow him to race drive which will ease his family’s financial burden.

37.2 That he is prepared to take a test monthly until RIB deems it pertinent to cease.

37.3 That he is allowed to pay the drug test money over 6 weeks.

37.4 That he continues to drive on the track to allow him to work and work his team to negate financial hardship.

37.5 That he had the personal guarantee of Mr Clarke to assist and guide him where and when necessary and he is also surrounded by many responsible people who can also help him.

Reasons for Penalty

[38] The RIB Penalty Guide for Harness Racing Offences recommends an 8-week suspension as the starting point for a breach of Rule 512(1).  The Guide assumes that the severity of the breach is mid-range. This provides a degree of flexibility for the Adjudicative Committee to make some adjustments from the 8-week starting point based on its assessment of the facts of the case and the Respondent’s culpability.

[39] In that regard, the Adjudicative Committee has considered the evidence; the submissions lodged by the Applicant and the Respondent and penalties imposed in like (precedent) cases which have been highlighted in paragraph 27.   Also, in addition to the aggravating and mitigating factors raised by the RIB, which the Adjudicative Committee agrees with, it has given thorough consideration to the Respondent’s personal circumstances, including his age and the potential for a rehabilitative approach to be adopted.

[40] The Adjudicative Committee accepts the submission, that recent penalties for Cannabis use, across both Harness and Thoroughbred Codes, have attracted broadly similar penalties in the vicinity of a six-week suspension.

[41] Therefore, in consideration of the circumstances of this case, the Adjudicative Committee does not propose to deviate too far from those precedent penalties.  A six-week suspension represents a 20% reduction from the 8-week starting point which is, in its view, fair and reasonable, in that it appropriately reflects the Respondent’s admission of the breach, his good record, and his cooperation.  The Adjudicative Committee did note, however, that when first spoken to by the RIB Investigator about this matter, he initially denied having recently used Cannabis, but prior to the hearing he fully accepted responsibility for his actions and during the course of the hearing, the Adjudicative Committee got a good sense of contrition. When asked about his initial denial, the Respondent said that he “panicked” when first told of the positive result.

[42] Having arrived at a penalty in the vicinity of six weeks, the Adjudicative Committee then considered Mr Clarke’s submission that the ‘whole penalty’ be suspended but determined that because this is a serious racing offence, a suspended penalty is not appropriate.  However, the Adjudicative Committee has had due regard for Mr Clarke’s offer to support and mentor the Respondent, and notes there are others in the Industry, including his employer, who are also prepared to help.  The Adjudicative Committee places considerable weight on this generous offer of support as it believes that people ‘on the ground’ who are close to the Respondent, are well placed to help him, along with any professional counselling that may be available to him in relation to drug use.   It is important that the Respondent fully appreciates and understands the inherent risks, not only to himself but other racing participants, that stem from drug use when routinely engaged in safety sensitive activities, such as race driving.  It is therefore important that the support which is on offer, must reinforce this aspect when engaging with him.

[43] In support of a rehabilitative approach, Clause 28A of the Fifth Schedule of the Rules empowers an Adjudicative Committee to defer any decision on sanction or penalty, or any part thereof for any reason including …. rehabilitative measures (refer clauses 28A (3) and (4)). Consequently, in accordance with this Clause, the Adjudicative Committee has judged that this is an entirely appropriate case for it to suspend or defer ‘part’ of the penalty imposed on the Respondent, subject to his submission of a clear drug test prior to recommencing ‘safety sensitive activities’. Under this provision, the Adjudicative Committee ‘suspends’ one week of what would have been a 6 week suspension, and arrives at an end point of 5 weeks suspension, subject to his submission of a clear drug test result – refer paragraph 46.2 for further details on conditions that must be met.

[44] Accordingly, the Adjudicative Committee directs that the 3 weeks that the Respondent has already served on stand down be taken into account, albeit stand down time should not necessarily be construed as a penalty in its own right.  But the Adjudicative Committee does give it recognition, because during his period of stand down since 6 July 2023, the Respondent has not been able to drive in races and he has been limited in the range of activities that he would otherwise have undertaken, which collectively has impacted on his earning capacity over this period. Thus, if the Respondent complies with the Adjudicative Committee’s direction, it will defer a further week of his suspension, subject to conditions at paragraph 43, so that his total period of suspension is reduced to 5 weeks.

[45] In conclusion, the Adjudicative Committee believes that the Respondent is a promising Junior Driver who, from 300 race drives, has had 34 winners.  He has a bright future in Harness Racing and must now take on board, lessons learnt from this breach. He understands that he has let a number of people down who have thus far supported his career, and it remains up to him to make good on the support that he has received.

Penalty and Costs

[46] Therefore, in the final result, having carefully considered all the material that has been placed before it, the Adjudicative Committee imposes the following penalty and makes the following orders:

46.1 Mr Delany is suspended from holding a Junior Drivers Licence for a period of 5 weeks. The Adjudicative Committee has taken into account time already spent on stand down and therefore, this suspension is backdated to commence on 6 July 2023 (being the date the Stand Down Notice was served), and remains in force up to and including, Wednesday 9 August 2023 (5 weeks).

46.2 This is conditional upon Mr Delany providing evidence to the RIB, of a clear drug test at his own expense, before 9 August 2023.

Costs  

[47] Costs of $187.50, being the cost of the sample analysis by the ESR, are awarded in favour of the Applicant and are payable to the RIB.

[48] Although this matter was heard on a Non-Raceday, and some RIB Adjudicative Committee costs have been incurred, on this occasion the Adjudicative Committee has waived those costs.