A Tirohanga man who was found to have a breath alcohol level of 577 micrograms per litre of breath – despite not having drunk any alcohol – has failed in a bid to be discharged without conviction.

Ratnesh Bankim Mehta, 40, previously pleaded guilty to driving with excess breath alcohol but sought to be discharged without conviction on the basis that he had auto-brewery syndrome.

The syndrome causes sugars and carbohydrates to ferment in the gut, producing excessive amounts of ethanol.

Mehta was travelling on State Highway 35 at Tirohanga on October 26 last year, when he encountered an alcohol checkpoint. It was about 5.30pm and he was on his way home from the gym.

Ōpōtiki District Court heard last Thursday that Mehta was surprised at the test result because he had not been drinking.

He went home and Googled what could cause a sober person to return a positive breath alcohol result, discovered auto-brewery syndrome, and contacted his doctor for advice, who referred him to a specialist in Cambridge.

A blood alcohol test was taken the next day.

Police prosecutor Jasmyn Pearson said auto-brewery syndrome was not a common condition in New Zealand jurisdiction, but case law had been set in the United States and some cases had filtered to Australia.

Judge Louis Bidois said this was the first time he had come across the condition in the courts, but it was a rare phenomenon that was accepted in the US.

He was provided a report by a specialist, who was not an expert in auto-brewery syndrome, that raised doubt about whether alcohol produced within the body (as opposed to ingested) would show up on breath and blood alcohol tests.

A test was completed in a controlled environment using the defendant’s breathalyser, which was previously said in court to have supported his auto-brewery claim, but the preferred diagnostic test was not practically feasible.

Police opposed the application for discharge without conviction because the medical reports were not conclusive.

New Zealand law allows judges to discharge offenders without conviction if they are satisfied the consequences of conviction will be out of proportion to the gravity or seriousness of the offence.

Defence lawyer Leonard Hemi said the consequence, in Mehta’s case, was a conviction because of a condition he was not aware of having.

He said a conviction would unjustifiably increase the defendant’s jeopardy.

“He will essentially have his name marked by a conviction that isn’t justified because he didn’t knowingly do it.”

The New Zealand Transport Agency placed a medical prohibition on Mehta’s licence after hearing about his auto-brewery syndrome.

Mr Hemi suggested any further risk posed by the defendant driving with the condition could be mitigated by having a privately arranged interlock device installed in his vehicle, and a licence condition not to drive any vehicle without the device.

Judge Bidois denied the discharge without conviction application and, instead, invoked a different section of the law that allowed Mehta to avoid the disqualification, which would normally be mandatory upon conviction.

He said a plausible explanation had been given for the breath alcohol level, but the threshold for discharge without conviction had not been met.

The judge said this was Mehta’s second drink-driving conviction and if he received another with a level above 1000mcg, he could be indefinitely disqualified from driving or subject to an alcohol interlock.

Judge Bidois said symptoms of intoxication that Mehta would have felt should have told him that there was something wrong with him before he got behind the wheel, even if he did not know the source.

Mehta was convicted of driving with excess breath alcohol and discharged without penalty.

Protection order breach admitted

Paku Joseph Edwards has been sentenced to six months’ prison for breaching a protection order by going to an address where the victim was also visiting.

The defendant appeared by audio visual link from police custody, where he had been remanded after his arrest.

He intended to apply for bail at his most recent hearing but opted to plead guilty instead.

“I don’t want to muck around,” he told the judge.

Edwards was granted leave to apply for home detention at an address outside the Eastern Bay.

Supervision for first-time violent offender

Otara man Dre Turei has been sentenced for three violence-related charges – his first convictions of the type.

The 23-year-old pleaded guilty last week to two counts of assault on a person in a family relationship and an amended charge of intimidation.

Judge Bidois said the offending happened across two days and left the victim with a black eye, sore ear that affected her hearing, and bruises to her arms and legs.

Defence lawyer Nicki Franklin said Turei was a young man struggling with family pressures and raising two young children while living in small cabins on a piece of land.

She said her client was upset by what happened and the effect it had. There had been a whānau hui, but Turei “clearly” needed counselling, Mrs Franklin said.

Judge Bidois sentenced the defendant to 160 hours’ community work, nine months’ supervision and ordered a $300 emotional harm payment be made to the victim.

“If you don’t change your ways, you’re going to lose your family,” he said.

Food items shoplifted

A man who admitted two shoplifting charges and breached his supervision sentence has been sentenced to prison while he waits in custody to apply for bail.

Kahu Lee Kahika was sentenced to four months’ prison for the charges.

The court heard the shoplifting charges related to food items, and the breach of supervision was caused by Kahika relocating to the Ōpōtiki district from the Hawke’s Bay.

He was ordered to pay $113 in reparation.

Defence lawyer Nicki Franklin said Kahika had completed residential rehabilitation and was trying to make changes for his whānau.

Judge Bidois said the defendant’s attitude for change was encouraging, but he moved to Ōpōtiki and committed offences in “no time at all.”

Kahika was further remanded to next week for charges of assault with intent to injure, theft from a car, threatening to kill or cause grievous bodily harm, escaping police custody, failing to stop for police, reckless driving, receiving stolen property and possession of an offensive weapon.

Home detention for raft of charges

Pere Nathan has been sentenced to home detention for a raft of driving and violence charges.

Nathan, 43, pleaded guilty to charges of theft, driving dangerously, injuring with intent to injure, escaping police custody, refusing an officer’s request for blood and two counts of driving while disqualified.

He was found guilty at trial of common assault and wilful damage.

Some of the offending was committed while he was on bail and serving sentences for other convictions.

Judge Bidois said the defendant had a history of violence and continued to be violent.

The victim of one of the assaults was left with a black eye, bruising and a lump on her forehead.

The judge heard Nathan was motivated to address his issues and was on waiting lists for residential rehabilitation facilities.

He was the caregiver for three children and Judge Bidois said he appeared to be at a crossroads in life, but now understood his responsibility to his children.

Nathan was sentenced to seven-and-a-half months’ home detention, including an extra month to account for a cancelled community work sentence and a three-month deduction to account for the time he spent on remand in custody.

The defendant was ordered to pay $500 in emotional harm reparation and $2692.15 in other reparation.

He was disqualified from driving for six months, starting at the end of October.

Firearms-accused appears

Eastlee Gemmell, 23, appeared on a raft charges, which he denied.

He is acused of unlawful possession of a firearm, threatening to kill, discharging a firearm to intimidate, four counts of presenting a firearm at another person and refusing to identify himself to police.

Gemmell also faces a charge of failing to remain stopped for police.

He is due in court for another hearing next month.

First offender sentenced for group assault

An 18-year-old first offender has been sentenced to community work and supervision for participating in a group assault that affected the victim mentally, physically and financially.

William Fowell pleaded guilty last week to charges of injuring with intent to injure and assault.

The court heard Fowell was in Kawerau with friends when they approached the victim, who had been drinking and was walking home.

An associate of the defendant punched the victim, another joined in, and then Fowell.

Defence lawyer Steve Franklin said the defendant kicked the victim five times.

The victim lost consciousness, suffered a concussion, haematoma, two black eyes, injuries to his back, multiple cuts and abrasions.

“There’s clearly some issues there with nangs,” police prosecutor Jasmyn Pearson said.

Judge Bidois said Fowell did not seem to grasp the gravity of his offending and its impacts.

He said the victim reported being affected mentally, physically and financially.

Fowell was sentenced to 300 hours’ community work, 12 months’ supervision and was ordered to pay  $600 emotional harm reparation.

His co-offenders are in the Youth Court jurisdiction, the judge said.

Quad bike, ramps stolen

Ōpōtiki man Bobby Dee/Adam Tai has been sentenced to 350 hours’ community work for unlawfully taking a quad bike worth $5000, stealing ramps valued at $350 and behaving threateningly.

Judge Bidois said the 36-year-old defendant was sent back to New Zealand from Australia, and he thought he had a chip on his shoulder as a result.

The ramps had since been returned to the victim.

The judge said Tai had shown no form of ownership towards his behaviour, which had left the victim feeling nervous to walk around town.

Judge Bidois said the offending did not justify a prison sentence, as recommended by a pre-sentence report, but he noted that Tai had quickly racked up community work and fines since he was returned to New Zealand.

Tai was sentenced to 350 hours’ community work. He was ordered to pay $1162 in reparation and $150 in emotional harm reparation.

Man punched for affair

Torere man Richard William Turipa admitted punching a family member and said he did so because the man was having an affair.

“He made me an accessory to an adulterous affair,” Turipa said after pleading guilty to a charge of assault with intent to injure.

“My principle was right.”

Judge Bidois said there was no justification for violence.

The court heard the assault was a single punch and Turipa’s last conviction for violence was in 1989.

Turipa, 63, spent 12 days in custody following his arrest.

He was sentenced to 12 months’ supervision and $500 in emotional harm reparations.

Judge Bidois said a community work sentence would be setting Turipa up to fail.

Man found in boot of car after assault

Tauranga man Anthony Rogers, 21, was found by police in the boot of a car after “totally out of it behaviour” that landed him with five convictions, the court heard.

Judge Bidois said the defendant went to his former partner’s address while she was asleep, climbed through the window and tried to kiss and cuddle her, before threatening her.

He left when her father told him to, but returned and smashed a window.

The judge said Rogers grabbed the victim around her neck through the window and then left.

Police located him in the boot of a car. Rogers grabbed the officer by the throat and attempted to bite him.

Judge Bidois described the offending as “pretty disgusting” and “totally out of it.”

Rogers was sentenced to 180 hours’ community work, nine months’ supervision, and was ordered to pay $200 in reparation, in addition to $250 in emotional harm reparations.

Driver sentenced after crash

Kenneth Alistair Winder has been sentenced to 220 hours’ community work for three driving charges.

Judge Bidois said Winder crashed into a power pole head-on, which then fell and hit a fence.

He was sentenced for charges of careless driving, refusing to undergo a compulsory impairment test and driving while forbidden.

A charge of driving while suspended was withdrawn by police.

Winder was disqualified from driving for six months.

He is due back in court in October for a case review hearing on charges of assault on a person in a family relationship and failing to stop or ascertain injury after a crash.