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Non Raceday Inquiry RIU v C W Johnson - Reasons for Penalty Decision dated 23 September 2020 - Chair, Mr R G McKenzie

Created on 24 September 2020

BEFORE A JUDICIAL COMMITTEE

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT ASHBURTON

IN THE MATTER of the New Zealand Thoroughbred Racing Rules of Racing

IN THE MATTER of Information No. A7235

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND CHRISTOPHER WILLIAM JOHNSON, Licensed Jockey (Class A)

Respondent

Judicial Committee: Mr R G McKenzie (Chair)

Mr S C Ching (Member)

Venue: Ashburton Racecourse, Ashburton

Present: Mrs K R Williams, the Informant

Mr C W Johnson, the Respondent

Ms B J Middlewood

Mr J P Oatham, Chief Stipendiary Steward

Date of Hearing: 18 September 2020

Date of Written Decision: 23 September 2020

REASONS FOR PENALTY DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A7235 alleges that the Respondent “returned a breath alcohol level greater than 100mcg/L (149, 141 and 133) when tested between 12.15pm and 12.25 at the Canterbury JC meeting on 12 September 2020 in breach of Rule 656(4) of the New Zealand Thoroughbred Racing Rules of Racing.

The Rules

[2] Rule 656 of the Rules of Racing provides as follows:

(4) A Rider who rides or presents himself to ride a horse at a Racecourse, Training Facility or Trainer’s Premises must not have a breath alcohol level greater than 100 micrograms of alcohol per litre of Breath.

[3] The Penalty Rule is Rule 803(3) which provides as follows:

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.

[4] Mrs Williams presented a letter dated 15 September 2020 signed by Mr M R Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 903(2)(d) authorising the filing of the Information.

The Plea

[5] Mr Johnson was present at the hearing of the Information. The charge and relevant Rules were read to him, after which he confirmed that he admitted the breach.

[6] The charge was found proved.

Summary of Facts

[7] Mrs Williams presented the following agreed Summary of Facts:

1. The respondent, Christopher William JOHNSON, is a Class A (Jockey) Licenceholder under the Rules of New Zealand Thoroughbred Racing. Mr Johnson has held a licence since 1982, 38 years.

2. On the 12th September 2020, alcohol testing was conducted at the Canterbury JC Meeting. A number of riders were tested for the presence of alcohol.

3. Mr Johnson was tested following his ride in Race 1. A “passive” test indicated the presence of alcohol. Mr Johnson was then subjected to a “mouthpiece” test at 12.15pm and returned a level of 149mcg/L. A subsequent test at 12.17pm returned a level of 141mcg/l and a final test, after the requisite ten minutes, gave a level of 133mcg/l.

4. Mr Johnson’s recorded levels were in excess of the permitted level of 100mcg/l as per Rule 656(4).

5. Mr Johnson was immediately stood down from the remainder of his engagements at the meeting.

6. Mr Johnson acknowledged that he had been drinking the previous night from 5pm to 10pm and had eaten very little.

7. Mr Johnson admits he made an error of judgement and regrets his actions and is prepared to accept the consequences.

8. Mr Johnson was served with an Information alleging a breach of Rule 656(4) on 16th of September 2020 and admitted the breach.

9. Mr Johnson has been very forthright and co-operative in this matter.

10. Mr Johnson has not previously been charged with a breach of this Rule however was charged with a Cannabis offence in June 2016.

Informant’s Penalty Submissions

[8] Mrs Williams presented the following written penalty submissions:-

1. Mr Johnson is a Class A (Jockey) Licenceholder and has pleaded guilty to a breach of Rule 656(4) after he returned a breath/alcohol level greater than 100mcg/L, (149, 141 and 133) when tested between 12.15pm and 12.25pm at the Canterbury JC meeting on 12 September 2020.

2. Mr Johnson has not previously been charged with a breach of this Rule.

3. The purpose of the alcohol and drug testing Rules is to enable random testing to be carried out at any trial, race meeting or public training track at any time to ensure that jockeys/riders ride alcohol and drug free. The safety and welfare of both jockey and horses is paramount. Drug testing has been conducted since 1995 and alcohol since 2008 and riders are aware there is an absolute obligation under the Rules to present themselves free of the influences of drugs and alcohol. All riders are aware of the policy and the consequences should they not comply. The testing is conducted to ensure a safe and healthy workplace and to maintain the integrity of the industry.

4. The consumption of alcohol by Mr Johnson the night before this race meeting resulted in him being unable to meet his obligations to fulfil his riding engagements.

5. The Rules of Racing provide for declaration of riders in advance of raceday. The owners, trainers and punters are all inconvenienced and affected by a change of rider, and especially when it occurs during the course of the race meeting.

6. Licenceholders need to be held accountable, as we are all continuously striving to improve safety and integrity in our industry. It is detrimental to the interests of racing that a jockey be stood down by officials after failing an alcohol test at any time.

7. Sentencing Principles -

The four principles of sentencing can be summarised briefly

● Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that 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 like offences.

● A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.

● The need to rehabilitate the offender should be taken into account.

All four principles are particularly important here.

8. The RIU is strongly of the opinion that Mr Johnson needs to recognise he has an ongoing problem with alcohol and needs assistance to commit to a treatment plan, as he has in the past. This is for his own welfare and to ensure that he does not put himself and others at risk in the future, and that he has professional support that will enable him to return to racing.

9. A penalty needs to be imposed that will entice Mr Johnson to seriously take up the opportunity of rehabilitation. This would be in line with the suspended penalty imposed in the case of RIU v Crozier, where half of the penalty was suspended for three months pending the satisfactory completion of an alcohol rehabilitation programme. A similar stance should be taken on this occasion and strongly promoted to any Licenceholder who commits an offence under the Rules in relation to alcohol or drugs.

10. Historical penalties for breaches of the Rules show some divergence, dependent on the level of alcohol in the system at the time of testing, the type of licence held and where the offence occurred; at a race meeting, trials or a training track.

11. Relevant Precedents – In addition to the sentencing principles the Judicial Committee should have regard to relevant precedents in Thoroughbred and Harness Racing.

R.I.U. v B R Jones - 12 July 2008
Subject: Class A Jockey - Breath sample greater than 100mcg/l - suspended 1 month and fined $750

R.I.U. v V A Colgan - 12 July 2008
Subject: Class A Jockey - Breath sample greater than 100mcg/l - suspended 1 month and fined $750

R.I.U. v T Moseley - 14 April 2009
Subject: Class A Jockey - Breath sample greater than 100mcg/l (223, 214) - suspended 4 weeks.

R.I.U. v J Gillies - 22 September 2009
Subject: Class A Jockey - Breath sample greater than 100mcg/l (514, 515) - suspended 6 weeks. Extract from decision: “The Committee takes the view that the safety aspect in the industry is paramount and the actions of the Defendant in presenting himself on raceday with the excess alcohol level is deemed to be irresponsible. It is unacceptable for a senior rider or any rider, such as the Defendant, to put himself in a position where this could occur and was an absolute breach of the trust of his fellow riders…. The integrity of racing is of the utmost importance. It was seriously compromised on this occasion. The Rules are there for a clear purpose.”

R.I.U. v R Bishop - 2 February 2013
Subject: Class A Jockey - Breath sample greater than 100mcg/l (512) - suspended 5 weeks.

R.I.U. v D Daniels - 28 December 2015
Subject: Class A Jockey - Breath sample greater than 100mcg/l (396) - suspended 1 month and fined $500.

R.I.U. v L Callaway - 13 June 2016
Subject: Class A Jockey - Breath sample greater than 100mcg/l (185, 161) at trials - suspended 1 month.

R.I.U. v D Crozier - 23 August 2019
Subject: Licenced Trainer - Breath sample greater than 400mcg/l - Fined $5,000 with $2,500 suspended pending completion of rehabilitation course.

R.I.U. v B Orange - 21 January 2016
Subject: Open Driver Harness Racing - Breath sample greater than 100mcg/l (314) - suspended 5 days and fined $1,050.

R.I.U. v R Butt - 6 March 2016
Subject: Open Driver Harness Racing - Breath sample greater than 100mcg/l (314) - suspended 8 days and fined $1,000.

Mitigating Factors

12. It is acknowledged that Mr Johnson has admitted the breach.

13. The levels recorded were relatively low - 149, 141 and 133. While it would be below the level for a person driving a car, there is a zero-tolerance for jockeys recording levels over 100mcg/l.

14. Mr Johnson has no previous breaches of this rule.

15. Mr Johnson has co-operated fully in this investigation.

Aggravating Factors

16. Mr Johnson is more than aware of the requirements under the Rules after testing positive for Cannabis in 2016 and being alcohol and/or drug tested on 39 occasions since the introduction of the RIU.

Conclusion

17. It is submitted that a 4-6 weeks suspension of Mr Johnson’s raceday Jockey Licence and a fine of $1,000 be imposed, with leave of the JCA to consider suspending the fine subject to Mr Johnson satisfactorily completing an alcohol rehabilitation programme as set down by Ms D Young in consultation with Raceday Chaplain, Mr Andrew McKerrow, and approved by the RIU.

Respondent’s Submissions

[9] Mr Johnson confirmed that he had read the penalty submissions submitted by Mrs Williams.

[10] Mr Johnson said that he was aware that a jockey could be tested at any time. He said that he was surprised to learn that he was over the permissible limit and, had he been in any doubt, he would have done something about it. He realised that, perhaps, he should not be drinking at all before a race meeting or trials. He admitted that he had “mucked up”. He had made a mistake, he said, and wanted to take his punishment.

[11] He had not followed his usual pattern and a combination of factors had contributed to the breach, he said. He was aware that his weight was “not good” since not racing for a couple of months. He has a spa at his home on race morning, but his children had turned the water temperature down. He would normally have spent a few hours in the spa, and the sauna at the track was closed.

[12] Mrs Williams confirmed that Mr Johnson had struggled with his weight since the COVID-19 lockdown and had to stand down from rides in races 4 and 5, as he could not make the weight for those mounts. She believed that he did not eat on the previous night or the morning of raceday. She suggested that those factors would all have a bearing on the alcohol in his system. A combination of these factors led to the reading which was “just over”, she submitted.

[13] The suggestion of Mrs Williams, in her penalty submissions, that part of any penalty could be suspended pending completion of an approved alcohol rehabilitation programme was discussed with Mr Johnson. Mr Johnson said that it is well-recognised that he has an ongoing alcohol problem, and he acknowledged this fact. In response to the suggestion, he said that he believed that he had the “tools and knowledge” to keep his drinking in check. He simply needed to keep reminding himself, he said. He attempted to present himself to ride, be it at trackwork, trials or raceday, in a proper state to ride.

[14] In response to a question from the Committee, Mr Johnson said that he had undergone a 6-weeks course following his cannabis charge in 2016. He did not drink at all for two years following that, he said. Then things happened in his personal life and he started drinking again, but he honestly believed he was in control of his drinking. Mr Andrew McKerrow, Racing Chaplain, was always available to him and he kept in contact with him from time-to-time. He knew what was required and did not feel that any further rehabilitation/counselling would achieve anything.

[15] Mr Johnson said that he realised that, if he “mucked up” again, it could be career-ending. This was the “wake up call” that he needed, he said.

[16] No deferment of suspension was sought.

Comments of Belinda Middlewood

[17] Ms Middlewood is the holder of a Licence to Train, Mr Johnson’s jockey’s agent and former partner. She has supported Mr Johnson for the last 22 years, she said. For the first seven years of their relationship, when he was not riding, he did not drink at all. Persons in racing were not putting any pressure on him during that time, she said.

[18] She was prepared to continue to assist him and support him but was not prepared to control his drinking. She believed that Mr Johnson was capable of doing that himself. She confirmed that she was aware that the present breach was the result of a combination of unfortunate circumstances. She said that, had Mr Johnson believed that he was likely to return a reading of excess breath alcohol, he would not have ridden that day. She acknowledged that he was a jockey with a high public profile, and he would not knowingly jeopardise his career. He had not been able to have any coffee or food that would have, in all likelihood, made all the difference, she said.

Comments of Chief Stipendiary Steward, John Oatham

[19] Mr Oatham said that he supported part of Mr Johnson’s penalty being suspended, subject to him undergoing some form of counselling. A discussion followed and Mr Johnson indicated that he was willing to seek counselling, if required, but on an informal basis with assistance from Mr Andrew McKerrow.

Reasons for Penalty

[20] Mr Johnson is a high profile, very successful and popular senior jockey. He is 56 years old. He was first licensed in the 1980/1981 season but took a break from riding between 1998 and 2005. In that time, he has ridden over 2,400 winners and is rapidly closing in on the record for the number of New Zealand wins held by David Walsh, now retired.

[21] He won the jockeys’ premiership as recently as 2016/2017, 21 years after first winning it in 1995/1996. His record as a jockey speaks for itself.

[22] Unfortunately, it is well documented that Mr Johnson has struggled with an alcohol problem for most of his riding career and he was very candid in admitting this to the Committee at the hearing. However, his record says that he has been careful in not letting it interfere with his riding. This breach is his first that is directly related to alcohol.

[23] Rule 656(4) states that a jockey must not present himself to ride with a breath-alcohol level greater that 100 micrograms of alcohol per litre of breath. It is interesting to note that the Land Transport Amendment (No.2) Act 2014 lowered the breath alcohol limit for adult drivers from 400 mcg/L to 250 mcg/L. So, a motorist is permitted drive with a level two-and-a-half times that at which a jockey is permitted to ride. We say this, not to minimise this breach but, rather, to stress the high standard required of our jockeys in carrying out a “Safety Sensitive Activity”.

[24] New Zealand Thoroughbred Racing’s Safety Sensitive Policy defines a “Safety Sensitive Position” as “a job or position where a person holding this position has the responsibility for his/her own safety and/or other persons safety and/or the welfare and safety of all horses affected by their actions”. Hence, the very strict limits on jockeys when it comes to alcohol.

[25] Mr Johnson was breath tested, along with a number of other riders, following Race 1 at Riccarton on 12 September 2020. He returned readings ranging from 149 mcg/L down to 133 mcg/L in three readings over a period of 10 minutes – all in excess of the permissible 100 mcg/L.

[26] Mr Johnson has freely admitted that he had breached the Rule. The lowest reading is low, and there is no suggestion that Mr Johnson was under the influence of alcohol – merely in breach of the Rule that sets a low level of tolerance.

[27] Mrs Williams, in her penalty submissions, referred the Committee to a number of earlier cases involving jockeys tested in excess of 100 mcg/L. Penalties in those cases were consistently in the vicinity of 4 weeks/1 month, together with a monetary penalty in some cases. In at least two of those cases, the breath/alcohol level was in excess of 390 mcg/L. In fact, no case was referred to us where the level was as low as that of Mr Johnson.

[28] The explanation put forward by Mr Johnson does not suggest that he had been drinking heavily on the eve of the race meeting. A combination of factors, which we accept, led to the breath/alcohol level. We accept that Mr Johnson was having difficulty getting his weight down for several of his rides. In fact, prior to Race 1, he had to give up two of his rides because he was unable to make the weight and was fined $100 under the minor infringement scheme. This is consistent with his explanation that, in an effort to get his weight down, he had not eaten the night before or on race morning, and he had been unable to follow his usual routine of a spa and/or sauna before the races. It is highly likely that a combination of these factors had an effect on his breath/alcohol level upon testing after Race 1.

[29] The relatively low level is one factor that the Committee has taken into account in arriving at penalty. It is a material factor, but the absence of an aggravating factor rather than a mitigating factor. We have also taken into account, as mitigating factors, Mr Johnson’s record and his admission of the breach. In addition, we have considered the general desirability of imposing a penalty that is consistent with other penalties imposed on similar offenders committing similar offences.

[30] It is an important function of a Judicial Committee to maintain integrity and public confidence in racing - Rule 920(2)(d) - and we have had regard to this. In addition, the Committee has had regard to the need to hold Mr Johnson accountable for the offending, to promote in him a sense of responsibility for and acknowledgement of that offending and the need to denounce his conduct. We have also been mindful, in this case, of the important need to deter others from committing the same or a similar offence.

Penalty

[31] Mr Johnson’s Class A Jockey’s Licence is suspended for a period of 4 weeks commencing on 19 September 2020 and ending after 16 October 2020. In addition, Mr Johnson is fined the sum of $1,000.

Costs

[32] No order for costs was sought by the Informant and, since the hearing of the Information took place on a raceday, there will be no order for costs in favour of the JCA.

R G McKenzie

(Chair)

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