Drakeley v Queensland Racing Integrity Commission [2020] QCAT 359

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Drakeley v Queensland Racing Integrity Commission [2020] QCAT 359 PARTIES: JAY THOMAS TEX DRAKELEY (applicant) v QUEENSLAND RACING INTEGRITY COMMISSION (respondent) APPLICATION NO/S: OCR006-20 MATTER TYPE: Occupational regulation matters DELIVERED ON: 9 September 2020 HEARING DATE: 27 August 2020 HEARD AT: Brisbane DECISION OF: Member Poteri ORDERS: The decision of 2 December 2019 is set aside. The penalty imposed on the Applicant is a fine of $500 and a suspension for a period of two (2) weeks, which is wholly suspended for a period of two (2) years pursuant to Australian Rule of Racing 283, on the condition the Applicant does not re-offend under such rule in that period. The fine of $500 must be paid within 30 days of the date of this order. CATCHWORDS: OCCUPATIONAL REGULATION MATTERS – where the Applicant was charged with breaching Rule 139 of the Australian Rules of Racing by being the rider of a horse doing track work whilst having a blood alcohol concentration reading of more than 0.02% (that is, 20 milligrams of alcohol in every 100 millilitres of blood) - where the Applicant has applied to the Tribunal pursuant to s 246 of the Racing Integrity Act 2002 (Qld) for a review of the internal review decision of the Queensland Racing and Integrity Commission regarding the penalty imposed. Racing Integrity Act 2016 (Qld), s 246 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 -- 1 of 4 -- 2 Australian Rules of Racing, Rule 136, Rule 139, Rule 141, Rule 283 APPEARANCES & REPRESENTATION: Applicant: P Boyce, lawyer of Butler McDermott, Lawyers. Respondent: W Kelly, in house Counsel REASONS FOR DECISION [1] On 29 November 2019 stewards of the Queensland Racing Integrity Commission (QRIC) attended the Sunshine Coast Turf Club to undertake random breath tests on riders. The Applicant, Mr Drakeley, was carrying out track work at the time and voluntarily provided a breath sample which returned blood alcohol readings of 0.031% and 0.023%. These readings of blood alcohol concentration exceeded the threshold of 0.02% contained in Rule 136(1)(f) of the Australian Rules of Racing (ARR). [2] A Stewards’ Inquiry was convened on 1 December 2019 where Mr Drakeley pleaded guilty to the charge and a penalty of suspension from riding for a period of one month was imposed on Mr Drakeley. Mr Drakeley requested QRIC to internally review this decision. Mr K Ashby of QRIC undertook this internal review and on 2 January 20202 decided (the Decision) to amend the original decision by imposing a one month suspension, of which two weeks is wholly suspended for a period of two years pursuant to Rule 283 of ARR. [3] On 3 January 2020 Mr Drakeley applied to the Tribunal to review the Decision pursuant to s 246 of the Racing Integrity Act 2016 (Qld) (RIA). Pursuant to ss 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2002 (Qld) (QCAT Act) this review is a fresh hearing on the merits and I have all the functions of the decision maker of the Decision. [4] The facts and circumstances of this matter are not in issue. They are: (a) Mr Drakeley is approximately 34 years of age and he has worked as a track rider since he was 16 years of age. He has been employed by Mr G Taylor for approximately eight months. This employment is Mr Drakeley’s sole source of income and he earns approximately $1,200 to $1,400 per week. (b) Mr Drakeley consumed approximately six stubbies of beer between 7:30pm and 9:30pm on the night before the breath tests were undertaken. He went to bed and arose the next morning, 29 November 2019, where he attended the track at approximately 3:30am to 4am to do track work with some horses. (c) Mr Drakeley was fully co-operative with the stewards and pleaded guilty at the Stewards’ Inquiry on 1 December 2019. (d) Breath tests carried out by the stewards were random breath tests on all riders at the track. There were no issues with the riding of Mr Drakeley on 29 November 2019. (e) Mr Drakeley had been riding track work for some 16 years with an unblemished record with no breaches of ARR or reprimands. -- 2 of 4 -- 3 (f) Previously Mr Drakeley had participated in some 15 urine tests with no breaches of the ARR. [5] Evidence was provided by Mr Drakeley at the Stewards’ Inquiry that he thought that he would be fine as far as any residual level of alcohol left in his system. See page 9 of the transcript of the Stewards’ Inquiry where Mr Drakeley says: “And, yeah, I didn’t think I would---- I thought I'd be fine. Like, it was seven hours later, I thought I was, yeah, it would be fine”. [6] In giving evidence at the hearing, Mr Drakeley said that he didn't believe that he had any problems with his blood alcohol concentration level as he assumed that the threshold for riding horses was the same as driving a vehicle. That is 0.05%. Given the very low alcohol readings provided by Mr Drakeley, I accept that when Mr Drakeley was undertaking the track work on 29 November 2019, he was unaware that he was breaching any rules of ARR. [7] Drakeley gave evidence that his sole source of income is derived from riding track work and strapping. He says that any period of suspension would have a significant effect on his household budget. He gave evidence that his partner is soon expecting a child and his partner only has low paid employment. Further he stated that he and his partner lived in rented premises and they have other financial commitments. [8] Mr Drakeley also stated in his evidence that he is not certain of his employment security because his current employer will have to arrange another rider if he is suspended for any period of time. [9] In assessing an appropriate penalty, the internal reviewer has made reference to precedents where penalties have been imposed for similar breaches of the ARR. In the material filed by the Respondent on 13 February 2020 there is a list of precedent cases. In my view the only comparative precedent is the matter of Hocking that was decided in Victoria in 2011 where Hocking had a blood alcohol reading of 0.021% and Hocking had no previous breaches of this type. A penalty of two weeks’ suspension was imposed on Hocking. None of the period of suspension was stayed in the Hocking precedent. The internal reviewer makes reference to the Hocking matter on page 5 of the Decision. [10] The internal reviewer has relied, amongst other relevant facts and circumstances, on the Hocking precedent in the making of the Decision. In this consideration there does not appear that there was any in depth analysis of this precedent. Further during the hearing, I asked Mr Kelly, Counsel for the Respondent, if he had any further details of the relevant background and history of Hocking regarding this precedent. He was not able to provide me with any details. Therefore, it is my view that the Hocking matter should not be considered a comparable precedent unless there is a full analysis of the personal background and history of Hocking. Further there is no legal requirement or obligation for the decision maker to follow any precedent cases. [11] Mr Boyce has submitted that any penalty imposed should be determined by considering Rule 141 of ARR. This provision allows stewards to suspend the effect of any penalty imposed by them. Mr Boyce says that this provision should inform and -- 3 of 4 -- 4 guide the decision maker that suspending the effect of a penalty is an appropriate and preferred course for stewards. The Respondent does not agree with this interpretation of Rule 141 and it is my view that Rule 141 has been inserted to allow stewards to suspend the effect of penalties in relevant circumstances. I do not believe that Rule 141 of ARR has any other effect or guidance in the determination of an appropriate penalty. [12] Taking into account the personal circumstances of Mr Drakeley, his normal riding on 29 November 2019, his cooperation and his early guilty plea, his unblemished previous riding record, his understanding that he was not in breach of any rules and the very low alcohol readings, it is my view that any period of suspension is excessive. Any period of suspension would penalise Mr Drakeley at the rate of some $1,200 per week and may affect his employment security. [13] I believe that a monetary penalty of $500 is more appropriate and the full effect of any suspension should be stayed. I agree that the length of the stay should be two years. Both the monetary penalty and the stay of two years should act to penalise Mr Drakeley and act as a deterrent to Mr Drakeley as well as a general deterrent to others from committing a similar breach of ARR. Orders 1. The decision of 2 December 2019 is set aside. The penalty imposed on the Applicant is a fine of $500 and a suspension for a period of two (2) week which is wholly suspended for a period of two (2) years pursuant to Australian Rule of Racing 283, on the condition the Applicant does not re-offend under such rule in that period. The fine of $500 must be paid within 30 days of the date of this order. -- 4 of 4 --