A drink-driving United States citizen who hit and severely injured a Tauranga dentist has failed in his bid to avoid conviction, with a judge saying that would not be an option for a New Zealander.

A lawyer for Eric Albinio, 35, told the Tauranga District Court on Thursday the Mount Maunganui hospitality worker feared he would be deported if convicted.

Albinio pleaded guilty in May to driving with excess breath alcohol causing injury, a charge with a maximum penalty of five years in prison.

Court documents show Albinio was more than four times over the adult legal breath alcohol limit when the vehicle he was driving struck pedestrian Eric Benic on Oceanview Rd on April 4.

Benic was standing on the road next to a parked car outside his home when Albinio hit him and the car.

Albinio, who returned to the scene after noticing his bent wing mirror, told the police he had not noticed Benic, and had only had two beers after work.

Benic suffered a brain bleed and fractured bones in his shoulder, knee and face. He previously spoke to the Bay of Plenty Times about the “huge toll” the incident had taken on him and his family, emotionally and financially.

On Thursday, defence lawyer Rynae Butler sought a discharge without conviction for Albinio.

She said he now admitted he had three beers and a shot of rum before deciding to drive home.

“Mr Albinio accepts he made a foolhardy decision to drive … The main grounds for seeking a discharge is the impact of a conviction on his immigration status.”

Butler said Albinio was a US citizen from Nevada who had lived in New Zealand for seven years, and was seeking permanent residency.

She said if convicted there was a “real risk of his deportation”, as confirmed in an affidavit from an immigration advisor.

Butler said Albinio was settled here and Nevada would be like “a desert for him” in many ways. Media coverage of the case had impacted his reputation, “fragility and mental health”.

She said his references showed he was community-minded and motivated to try and put things right. He was remorseful, willing to engage in restorative justice and had offered $12,000 in emotional harm reparation earned during a US visit before sentencing.

Tauranga dentist Dale Benic, co-owner of the Bay of Plenty based Tooth Fairy Dental practices suffered multiple fractures and a brain bleed after being hit by a drink-driver.

He had no previous convictions, accepted full responsibility for his actions, had taken rehabilitative steps to abstain from alcohol, and was a low risk of reoffending.

He was willing to pay the $6000 in damages sought by an insurance company for damage to the parked car.

“In my submission, Mr Albinio has done everything humanly possible to address the harm to his victim and the societal harm from his offending,” Butler said.

She said his future employment prospects - including his current contract - and ability to travel overseas may be at risk if convicted.

Police prosecutor Kerry Sykes said police opposed the discharge application, as a conviction was not disproportional to the gravity of offending.

She said the risk of deportation was “very, very low” given Albinio’s lack of prior offending and the records of similar cases, and a letter from his employer showed his job was not at risk either.

“While police accept travel to other countries may be a slower process for Mr Albinio there is no legal bar to restrict his travel given his lack of previous history.”

Judge Louis Bidois told Albinio that the normal starting point for this charge was a short prison sentence.

“Everyone driving in a motor vehicle in New Zealand knows it is wrong to drink and drive and the danger you placed the victim in was unacceptable. "

Judge Louis Bidois.

The judge said in Albinio’s pre-sentence report he presented as ”an intelligent, self-assured and calm individual” who had accepted he was at fault for the accident and was genuinely remorseful for the harm Benic and his family suffered.

He said Albinio could not give a plausible explanation for the “very high alcohol reading” but had admitted feeling “very ashamed of himself … for his stupid and very selfish decision”.

He commended Albinio for returning to New Zealand for his sentencing hearing.

“That tells a lot about you, and that you own up to what you have done, but it also means you want to make New Zealand your home, and you could easily have stayed in America and avoided responsibility for this offending.”

Judge Bidois said there was no clear evidence of deportation risk if a conviction was entered.

“And in terms of proportionality, a New Zealander would not be entitled to a 106 discharge for this offence ….”

He convicted Albinio and sentenced him to 200 hours of community work, with an order to pay the victim $12,000 in emotional harm reparation.

Albinio was also disqualified from driving for 28 days, after which a 12-month alcohol interlock licence would start. He could then apply for a zero alcohol licence which, if granted, would last three years.

Sandra Conchie is a senior journalist at the Bay of Plenty Times and Rotorua Daily Post who has been a journalist for 24 years. She mainly covers police, court and other justice stories, as well as general news. She has been a Canon Media Awards regional/community reporter of the year