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Everton Diego Armando Augustine was granted a discharge without conviction for two drink-driving charges that had “devastating” effects.
Judge Stephen Harrop agreed the risk and consequences of deportation justified the discharge, but still convicted the 37-year-old for dangerous driving.
Augustine’s wife spent three months in hospital with multiple broken bones after the crash.
A drink-driver who put his wife in hospital for three months with two broken femurs and other injuries has been granted a discharge without conviction.
Everton Diego Armando Augustine successfully argued the risk of deportation and the effect that would have on his family was out of all proportion to the gravity of his offending — but he did not escape conviction on all charges.
The 37-year-old appeared in the Wellington District Court on Wednesday, having earlier pleaded guilty to two counts of driving with excess breath alcohol causing injury and one count of dangerous driving.
Judge Stephen Harrop said Augustine was at an event at Wellington’s Queen’s Wharf on April 20 last year with his wife. The couple, who emigrated to New Zealand with their children from South Africa in 2019, met a young South African man at the event and befriended him.
Everton Diego Armando Augustine appeared in the Wellington District Court, having pleaded guilty to drink driving causing injury.
Augustine had been drinking at the event but had very little to eat, and the restaurant they had planned to order dinner at was closed by the time they were ready to eat.
At 12.40am he was speeding along Jervois Quay with his wife and new friend in the car, travelling 76km/h in a 50km/h zone.
He ploughed through a red light, swerving to avoid a vehicle coming out of Hunter St on a green light. The car mounted the kerb and crashed into a tree.
Judge Harrop said Augustine suffered a head injury and fractured elbow and pelvis, while his wife broke both her femurs and seven ribs. The friend had a fractured shoulder, broken jaw, hole in his diaphragm, a punctured lung, and damage to his teeth.
Augustine’s wife spent three months in hospital recovering from her injuries.
“The consequences for everyone involved have been devastating,” Judge Harrop said.
Defence lawyer Hugo Porter said he could not see what more Augustine could do to make amends for his actions, with his client already having taken multiple steps including counselling to address the cause of the offending, paying a $400 donation to Wellington Free Ambulance alongside a monthly donation to Barnardos, and attending restorative justice with the victims.
“Sure, what happened that night? Idiotic in the extreme. No one’s shying away from that.”
But what Augustine had done since then was “substantial” and his actions brought the gravity of the offending down to a lower level, Porter said.
Judge Harrop said to begin with the gravity must be considered high.
“Without any more fault on your part there could have been three or perhaps more than three deaths.
“If your two children had been injured in this way by a drunk driver, you’d be expecting the court to impose a very stern sentence.”
He said there were “powerful mitigating factors”, including that both victims wanted him to receive a discharge without conviction. Those factors brought the gravity down to “low to moderate”.
The judge had received expert evidence from an immigration lawyer and accepted there was a risk Augustine could be deported if convicted on the drink-driving charges.
He noted the family had moved to New Zealand to escape racism in South Africa.
“I wouldn’t describe you as refugees, strictly speaking, but you’ve explained that you faced racist, discriminatory and violent conduct directed at you and your family because of, to use your words, your racial status as coloured or half-caste.”
He granted the discharge without conviction on the two drink-driving charges, but chose to convict Augustine on the dangerous driving charge, which did not carry the same deportation risk.
On that charge, he disqualified him from driving for eight months and ordered him to pay reparation of $1000 to the second victim, which he had already offered to pay.
Augustine shared a tearful embrace with his wife in the back of the court following the decision.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
