Non Raceday Inquiry – Written Decision dated 1 November 2022 – Nicole Thompson

CHARGE:

Information A17959

On Tuesday 6 September 2022 at the Stratford Racecourse Nicole Thompson wilfully failed to perform an act ordered by an Investigator to be performed by her in that she failed to provide for a drug test and is thereby liable to the penalty imposed pursuant to Rule 801(2) of the said Rules.

Rule 801(k)
A person commits a serious racing offence within the meaning of these Rules who wilfully fails to perform an act ordered by a Tribunal, NZTR, Stipendiary Steward or Investigator to be performed by him.

Penalty 801(2)
A person who commits a serious racing offence shall be liable to:
(a) be disqualified for any specific period or for life; and/or
(b) be suspended from holding or obtaining a licence for a period not exceeding 12 months. If a licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed licence; and/or
(c) a fine not exceeding $50,000

AUTHORISATION FOR THE CHARGE TO BE PREFERRED WAS GIVEN BY RIB MANAGEMENT.

SUMMARY OF FACTS:

The Respondent in this matter, Nicole THOMPSON, is the holder of a Class B Miscellaneous Licence [Trackwork Rider] issued by New Zealand Thoroughbred Racing [NZTR].  She is 27 years of age and is currently employed by Class A Trainer – Chris Bothwell as a Track Rider.

Circumstances

1. On Tuesday the 6th of September 2022, Investigators from the Racing Integrity Board conducted routine drug screening at the Stratford Racing Club in Stratford, Taranaki.

2. Ms Thompson was observed in Chris Bothwell’s barn leading a horse from the barn to an outside tie up/stable area.

3. Ms Thompson confirmed her Licence status and entered a small shanty located next to the barn to retrieve her current Trackwork Licence – 123725, which she presented to me.

4. At 08:03 hours she was served with a Drug Testing Notification Form by me, requesting she present at The Drug Detection Agency (TDDA) van for testing on-site between the hours of 07:00 to 09:30.

5. It was explained to Ms Thompson the location of the parked TDDA Van, which she acknowledged and accepted the notice.

6. She was one of seven people selected for testing who were performing a ‘safety sensitive activity’ that day.

7. At approximately 09:00 hours, Chris Bothwell drove over in his Ute to the location of the TDDA Van to query as to whether Ms Thompson “had been over”. We advised him that she was still to present for testing.

8. Mr Bothwell further advised that Ms Thompson’s private vehicle had gone from where it was parked directly in front of his barn.

9. Mr Bothwell advised that he would attempt to contact Ms Thompson by phone and check the ‘shanty’ located next to the barn in case she was still on the premises.

10. He returned in his Ute a short time later to advise that he had had no luck in locating her and that she was not answering her mobile phone.

11. The Respondent failed to present within the allocated testing time period and the TDDA Van departing the racecourse.

12. The following day 7th September 2022, at 07:20 hours a phone call was received by Catherine Hutton, RIB from Ms Thompson.  Ms Thompson’s reason for the call was to advise “that she was supposed to do a drug test at Stratford Racing Club yesterday and she didn’t. She now wants to speak with someone about how she goes about doing the test now.”

13. Ms Thompson was contacted by me and Investigator G Murrow and advised that it was not an option to undertake drug testing post the allocated testing period.

14. Ms Thompson questioned as to what would happen next; and was advised that her failure to undertake drug testing would likely result in prosecution. She acknowledged that she understood this.

15. The Respondent has therefore not supplied a sample in accordance with the Rules and as directed by the Investigator as per Rule 656(2).

16. By failing to provide a sample during the times specified in the notice, she has wilfully failed to perform an act ordered by an Investigator.

17. Enquiries undertaken with New Zealand Thoroughbred Racing [NZTR] confirms there is no judicial on file for Ms Thompson.

R Carr – RIB

Ms N Thompson agreed with the summary.

PLEA:

As the charge was admitted it was deemed proved.

PENALTY SUBMISSIONS:

Informant

1. Introduction

1.1 The Respondent, Nicole Thompson, is the holder of a Class B Track Work Rider Licence issued by New Zealand Thoroughbred Racing (NZTR).

1.2 She is 27 years of age and is currently employed by Class A Trainer – Chris Bothwell as a Track Rider.

1.3 Ms Thompson has admitted a breach of the Rules in relation to failing to present herself for drug testing at Stratford Racecourse when directed on the 6th of September 2022.

1.4 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.

1.5 All Riders should be aware of the policy and the consequences should they not comply.

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

2. Offending

2.1 The details of Ms Thompson’s offending are contained in the agreed Summary of Facts.

3. Penalty Provisions

3.1 The penalty provisions for breaching NZTR Rule 801(1)(k) are contained under Rule 801(2):

A person who commits a Serious Racing Offence shall be liable to:
(a) be disqualified for any specific period or for life; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or
(c) a fine not exceeding $50,000.

4. Sentencing Principles

4.1 The four principles of sentencing can be summarised briefly:

• 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.

4.2  All four principles apply in this matter.

5. Precedent

5.1 The most recent cases involving failing to comply of this nature are as follows:

RIB V HARRISON (28.09.2022) Track Rider – 2nd offence. The penalty in this case was 7 months disqualification.
RIB v JONES (27.08.2022) Apprentice Jockey. The penalty in this case was 7 months suspension.
RIU v TAYLOR (8.01.2021). Trainer. The penalty in this case was 12 months disqualification.
RIU v HARRISON (14.11.2019) Track Rider. The penalty in this case was 12 months suspension (four months suspended upon meeting conditions).

5.2 Recent penalties for Track Riders and Jockeys testing positive to the Class C Drug Cannabis range from 6-9 weeks suspension.

5.3 Recent penalties for Track Riders testing positive to the Class A Drug Methamphetamine range from 9½ – 12-months disqualification (with three months suspended upon meeting conditions).

5.4 The implications of disqualification and suspension on a Track Rider are summarised as:

Under Rule 1104(1) a person who is disqualified shall not:

(b) ride any horse in a Race or be employed in any capacity in connection with the training or racing of horses; and/or
(c) enter or go upon any Racecourse or any Training Facility or other place owned or controlled by any Club.

Under Rule 1106(1) a person who is suspended shall not:

(b) ride any horse in any Race.

Under Rule 324 only a Licence Holder may ride a horse at any Racecourse, Training Facility or Trainer’s Premises.

Under Rule 327 a Trainer shall not employ or otherwise permit to work or to assist in any capacity in connection with the care, control or training of any horse:

(b) any unlicensed person.

5.5 It is submitted that both the HARRISON and JONES penalties provide no incentive for Licence Holders to comply with the drug testing procedure in the knowledge that they may test positive to a Class A Drug.

5.6 The RIB respectfully submits the penalty for failing to present for a drug test must exceed or at least equal the penalty for providing a sample positive to a Class ‘A’ Drug, otherwise a Licence Holder who knows they have recently consumed Methamphetamine is better to avoid the test, than provide a sample.

6. Aggravating Factors

6.1 Ms Thompson failed to present herself for testing at the allocated times and place.

6.2 Her employer Chris Bothwell made several attempts to contact her to encourage her return to the track, but she did not respond.

7. Penalty

7.1 Ms Thompson was working in a safety sensitive role and in refusing to supply a urine sample has “wilfully failed to perform an act ordered by an Investigator”.

7.2 As the RIB cannot determine categorically what drug or drugs may have been in Ms Thompson’s system, any penalty must reflect the more serious Class ‘A’ Drug range.

8. Conclusion

8.1 The RIB therefore seeks a 12-month disqualification.

8.2 No costs are sought by the RIB.

Respondent

In response to the penalty submissions, Ms Thompson said that she did not know the seriousness of it and was ashamed of herself and that she was very sorry. She said that it was self inflicted and that she would never do it again.

Ms Thompson said that riding trackwork was her only form of income.

She added that she rode six to ten horses per morning six days per week.

Ms Thompson presented several character references from Trainers within the Stratford district.

REASONS FOR PENALTY:

The Adjudicative Committee found that Ms Thompson’s failure to present for a drug test after being directed to do so by an RIB Investigator, was a serious breach of the Rules of Racing.

Persons involved within the Industry should at all times comply with the Rules and directives given by the RIB, particularly when a matter is related to safety.

We have taken into account all matters that were put to us in relation to penalty, including penalties imposed for similar breaches, the sentencing principles and the admitted breach.

The Adjudicative Committee adopted a starting point of 12 months disqualification and due to the mitigating features including Ms Thompson’s clear remorse, the many supportive references she supplied and her clean record, a two-month discount was applied.

CONCLUSION:

Ms Nicole Thompson was disqualified for 10 months from 5pm 27 October 2022 through to 27 August 2023.

COSTS:

Ms Thompson was ordered to pay costs of $400 to the RIB Adjudicative Committee, being part of the costs incurred in the preparation and hearing of this Information.