15 Mar 2016

Road rage killer wins deportation battle

8:05 am on 15 March 2016

A man who killed a 78-year-old grandfather in a road rage attack has won his bid to stay in the country.

120514. Photo Diego Opatowski / RNZ. Coat of arms. Court

Bio O'Brien faced deportation after his release from prison but has now been allowed to remain in New Zealand. Photo: RNZ / Diego Opatowski

Bio O'Brien, 34, faced deportation back to Tuvalu after being released from prison but took his fight to the High Court, arguing it was in the best interests of his daughter for him to remain in New Zealand.

Read the Immigration and Protection Tribunal's decision on Bio O'Brien's case

Jasmatbhai Patel suffered critical head injuries when O'Brien pulled him from his van after a minor crash outside Unitec's Mt Albert campus in 2009.

Witnesses saw O'Brien, who was driving a black BMW, attack Mr Patel in rush hour traffic.

The judge who sentenced him to three years in jail for manslaughter said it was an appalling case of road rage and his actions were totally out of proportion to the situation.

She said it was a "sustained" attack on an elderly man of slight build in a public street during peak morning traffic, and potentially within view of primary school children.

O'Brien had several previous convictions, including assault and threatening to kill.

Mr Patel's family said after the sentencing that the three-year jail term imposed was not long enough.

His son, George Patel, said he would never forgive O'Brien for causing his father's death and he did not believe that he was sorry.

'Clear rehabilitation'

The Immigration and Protection Tribunal initially rejected O'Brien's attempt to stay in New Zealand.

It said the seriousness of the offence and its impact outweighed the compassionate interests of O'Brien and his family.

But he took his battle to the High Court and he was granted a judicial review.

That has led to the immigration tribunal reviewing the case and changing its decision.

It concluded his marriage would come to an end if he left, as his wife and his daughter would not move to Tuvalu.

It said his primary school-aged daughter would be at risk of emotional harm and his deportation could affect his wife's mental health.

A psychologist reported he had a low risk of re-offending and had been through programmes to learn to control his anger.

The tribunal concluded: "We find that the need to maintain the integrity of the immigration system is of modest weight only, given the length of time that has passed without further offending, the clear rehabilitation of the appellant and the sincerity of his remorse and regret for a momentary lapse, the consequences of which went far beyond what he had intended."