Mehta v The King

[2025] NZHC 2612

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2025-463-000002

[2025] NZHC 2612

BETWEEN

RATNESH BANKIM MEHTA

Appellant

AND

THE KING

Respondent

Hearing:	1 September 2025
Appearances:	L J L Hemi for Appellant L J Clay for Respondent
Judgment:	8 September 2025

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 8 September 2025 at 4.30 pm

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Piki Mai Law, Whakatāne

Pollett Legal Ltd, Tauranga

MEHTA v R [2025] NZHC 2612 [8 September 2025]

Introduction

[1]    This is an appeal against a decision of Judge L M Bidois declining the appellant’s, Mr Mehta’s, application for a discharge without conviction under s 106 of the Sentencing Act 2002.1 Mr Mehta was before the Court having pleaded guilty to a charge of driving with excess breath alcohol.2 The appeal is opposed. An appeal against a refusal to grant a discharge without conviction proceeds as an appeal against both conviction and sentence.3

Legal principles

[2]    The Court may grant a discharge without conviction if satisfied the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.4

[3]    The accepted course is to assess the gravity of the offending having regard to all relevant aggravating and mitigating factors; to identify the direct and indirect consequences of conviction of which there is a real and appreciable risk; and to determine whether those consequences are out of all proportion to the gravity of the offending.

Background

[4]    At about 7.45 pm on 26 October 2023, Mr Mehta was stopped by police at a routine alcohol check point. Mr Mehta undertook a breath screening test which suggested he had been consuming alcohol, following which the police administered an evidential breath test, the result of which was a reading of 577 micrograms of alcohol per litre of breath. The police subsequently charged Mr Mehta with driving with excess breath alcohol.

1      Police v Mehta [2024] NZDC 23393.

2      Land Transport Act 1998, s 56(1). Maximum penalty: three months’ imprisonment or a fine of

$4,500.

3      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].

4      Sentencing Act 2002, ss 106 and 107.

[5]    As it happened, and the Judge accepted this, Mr Mehta had not consumed any alcohol, and was surprised by the result.

[6]    Mr Mehta contacted his general practitioner, who referred him to a gastroenterologist. The gastroenterologist conducted various tests which indicated that Mr Mehta had a rare, but recognised, condition called “auto-brewery syndrome”. Auto-brewery syndrome is a condition in which micro-organisms in the digestive system ferment carbohydrates into ethanol. As I understand it, ethanol is “alcohol” for the purposes of s 56 of the Land Transport Act 1998.

[7]    Although s 56 creates an offence of strict liability, a defendant has a defence if they can prove, on the balance of probabilities, that their breath alcohol result is the product of involuntary consumption or process.5

[8]    Initially Mr Mehta pleaded not guilty to the offence, no doubt because he had such a defence. He then changed his plea to guilty. Mr Hemi, counsel for Mr Mehta, advised this was because the gastroenterologist had told Mr Mehta that he did not wish to take time away from his practice for the purposes of attending Court. The Court can and does accommodate a witness whose availability is limited, for instance by AVL, if indeed the prosecution requires the witness to be called. So whilst I do not doubt that explanation for the change, it is unsatisfactory.

Decision under appeal

[9]    In any event, having changed his plea, Mr Mehta made his (first) appearance seeking a discharge without conviction on 22 August 2024.6

[10]   The Judge accepted that Mr Mehta had not consumed alcohol and that his positive breath alcohol result derived from some other cause. The central paragraph of the Judge’s note from 22 August 2024 is:

[13] I am satisfied given the affidavit of Mr Mehta that he had not been consuming alcohol. The drink-drive laws are really based around consuming liquor or alcohol and then driving. He was innocent because of this syndrome but there are symptoms that can show intoxication. He should have been

5      O’Neill v Ministry of Transport [1985] 2 NZLR 513 (HC).

6      Police v Mehta [2024] NZDC 23393.

aware that something was wrong with him to have a reading of 577 although he might not have known the source.

[11]   The Judge’s view that Mr Mehta should have known that “something was wrong with him” caused the Judge to decline the discharge. He convicted Mr Mehta, did not impose a period of disqualification and nor did the Judge impose a fine or community work.

[12]   The matter was before the Judge again on 13 December 2024.7 Mr Hemi applied for a rehearing on the grounds that there was further information which ought to have been provided to the Court but which was not. The fresh information was that the conviction might affect a proposed application for a liquor licence and have an adverse impact on Mr Mehta’s ability to sponsor other applicants for residence.

[13]   The Judge repeated that this was not a case of Mr Mehta consuming alcohol and then driving but declined to revisit his earlier decision.

Discussion

[14]First, as I have indicated, Mr Mehta may well have had a defence to this charge.

[15] Secondly, it is not apparent to me on what basis the Judge said Mr Mehta “should have been aware that something was wrong with him” (see the quote at [10] above). As I have said, Mr Mehta was stopped at a routine check point. There is no evidence that there was anything untoward in the manner of Mr Mehta’s driving to draw the attention of the police, and nor is there any statement in the summary of facts warranting such a remark.

[16]   Thirdly, Mr Hemi referred me to several consequences of conviction for     Mr Mehta. I do not propose to address them. As is well-recognised, there are occasions on which even the usual consequences of conviction outweigh the gravity of the offending, and this is such a case.

7      Police v Mehta [2024] NZDC 32012.

[17]   I have considered whether I should quash the conviction and remit the matter back to the District Court to enable Mr Mehta to apply to vacate his guilty plea; reinstate his initial plea of not guilty; and advance his defence. However, that would incur further expense for all concerned.

Result

[18]I allow the appeal and discharge Mr Mehta without conviction.

Peters J