Non Raceday Inquiry – Written Penalty Decision dated 7 November 2023 – Karl Burgess

1. The Respondent is charged by the Informant:

That on 27 September 2023, at Awapuni Racecourse, having been required by a Racing Investigator to supply a sample of his urine in accordance with r.656(3) of the New Zealand Thoroughbred Rules of Racing (the Rules), he provided a sample, which upon analysis was found to contain the controlled drug THC (cannabis) as defined in the Misuse of Drugs Act 1975 (A15766).

2. This constitutes an offence under r 656(3) which provides:

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 does 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 substances or diuretic metabolites and/or artefacts or isomers.

3. The penalty for this offence arises under r 803 of the Rules:

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.

4. A teleconference was convened on this matter on 11 October 2023.

5. At that teleconference the Respondent confirmed admission of the charge, and that a penalty hearing be held on the papers.

6. Directions were made for written submissions by the parties.

BACKGROUND

7. The Respondent was riding trackwork on 23 September 2023. The RIB Investigators conducted routine drug screening of Trackwork Riders, the Respondent was randomly selected for testing and provided the required urine sample.

8. Following further analysis by ESR on 4 October 2023, the sample confirmed that the Respondent was positive to cannabis (THC) at a level less than 500mg/ml.

9. The Respondent was immediately stood down on 4 October 2023. In interview, the Respondent admitted to the occasional use of cannabis.

INFORMANT’S SUBMISSIONS

10. In written submissions, Ms Murrow highlights that New Zealand Thoroughbred Racing has been drug testing participants since 1995 and there is awareness in the Industry that there is an absolute obligation among Riders to present themselves free from the influence of drugs.

11. In terms of the principles of sentencing, Ms Murrow highlights that penalties are designed to punish the offender for their wrongdoing, but are not meant to be retributive in the sense that the punishment is disproportionate to the offence.

12. It is noted in the Racing context, it is extremely important that the penalty has the effect of deterring others from committing similar offences, a penalty should reflect the disapproval of the behaviour in question, and the need to rehabilitate the offender should also be considered.

13. The Adjudicative Committee is referred to the recent cases of RIB v Wiles and RIB v Wenn, where in both cases, following a positive test result of less than 500mg/ml, a six-week suspension was determined appropriate. The parties in those cases were a Trackwork Rider and a Licenced Stable Hand respectively. The Adjudicative Committee is also referred to RIB v Jones, where an Apprentice Jockey received an eight-week suspension where there were additional aggravating factors.

14. Ms Murrow highlights that the Respondent was riding trackwork at Awapuni Racecourse while the drug THC was within his system. Ms Murrow also notes that the Respondent has one previous charge for a positive cannabis result in 2012, for which he received an eight-week suspension.

15. In terms of aggravating factors, Ms Murrow highlights that this is the second cannabis offence by the Respondent, and also notes that the Respondent declined a referral to the Salvation Army for assessment and assistance.

16. In mitigation, Ms Murrow notes that the Respondent has entered an early guilty plea and accepted full responsibility for the positive test result. The Respondent has also been cooperative and respectful throughout the process.

17. Ms Murrow submits that an eight-week suspension of the Respondent’s Licence is appropriate, backdated to 27 September 2023 (when he was first stood down), costs are also sought in relation to ESR analysis.

RESPONDENT’S SUBMISSIONS

18. In brief written submissions, the Respondent advised he had no further comments to add and was comfortable to accept the penalty proposed.

PENALTY DECISION

19. The Adjudicative Committee has had regard to the submissions of both parties.

20. As noted in Ms Murrow’s submissions, drug testing within the Industry is well established and of fundamental importance to the health and wellbeing of all participants in what is a safety sensitive Industry. That is especially so in the case of those riding trackwork.

21. The Adjudicative Committee considers it is an aggravating factor that this is the second occasion on which the Respondent has been charged, and it is disappointing he has not availed himself of support offered through the RIB.

22. Nevertheless, the Adjudicative Committee also acknowledges that the Respondent has been cooperative and compliant with the investigation process and has entered an admission into the charge at the earliest opportunity.

23. In the circumstances, the Adjudicative Committee is prepared to accept the suggested suspension period of eight-weeks as submitted by the Informant, noting the previous offence committed by the Respondent was over ten years ago.

24. The Adjudicative Committee cautions the Respondent however, that this type of offence is one which is taken very seriously by the Industry and has significant health and safety ramifications.

25. Any further instance of such offence will likely result in serious consequences for the Respondent’s continued career within the Industry.

26. Having regard to all of the above, the Adjudicative Committee imposes a suspension of eight-weeks, taking effect from 27 September 2023.

COSTS

27. The Respondent is ordered to pay ESR costs of $187.50 to the Informant.

28. As the matter was determined on the papers, no Adjudicative Committee costs are imposed.