A man who fatally shot a 26-year-old home intruder near Katherine has been handed a sentence of four years and 10 months, but will serve just under two years behind bars for the offence.
Kim Kellett, 39, was awoken by his wife's screams at around 4am on March 17 this year, when a man entered their home through an unlocked front door.
After initially being chased off, the alleged intruder returned, after which Kellett fired a single shot down his driveway, which struck and killed the man.
The alleged intruder was a resident of a nearby alcohol rehabilitation facility.
In his sentencing remarks, Justice John Burns said Kellett's decision to fire a shot was reckless and presented a "danger of serious harm or death", but also accepted Kellett leaving his home was not an unreasonable action.
"I should add that whilst remaining inside the house may have been the wisest cause, it did not guarantee your safety or that of your family," he said.
"You were not to know whether the deceased was alone or in company, whether he had access to weapons or what he was intending to do."
Kellett was originally charged with murder but pleaded guilty to the reduced charge of manslaughter.
Justice John Burns said the four year and ten month sentence would be suspended from January 2024.
Kellett shot 'recklessly into darkness'
When the man returned after initially being chased off, Kellett's wife called police at 4:08am and mentioned to operators she had her gun.
During the eight-minute phone call, her husband warned the operator: "Hurry up mate, because he's gonna get shot mate, my kids are here."
The Northern Supreme Court heard Kellett again left his house with a rifle after hearing noises around his property.
Kellett, armed with a .308 rifle, fired down his front driveway towards the direction he heard the noise. The shot hit the man in the chest.
After police arrived, Kellett told officers he had "only just fired a warning shot".
The 26-year-old man was pronounced dead at 5am.
During last month's hearings, Kellett's lawyer, Jon Tippett KC, said Kellett fired the shot to "let the man know he had a gun, and that he should stay back".
"He accepts that he recklessly fired into the darkness, chest-height, and could not see the man when he fired," Mr Tippet said.
Prosecution argued shots were not about safety concerns
In his earlier submissions, Crown Prosecutor Marty Aust argued Kellett was not motivated out of concern for the safety of his family, but out of anger that the deceased invaded his residence.
Justice Burns rejected that argument, saying there was no evidence to support it.
He found that Kellett had a reasonable fear given the man entered his property in the middle of the night, dressed only in boxer shorts.
"We cannot now know why the deceased chose to enter your house dressed as he was in the middle of the night … But the fact is, you did not know the deceased, you did not know anything of his background.
"All you knew was that he was a person who entered your home in a partially undressed state in the early hours of the morning.
"The conduct of the deceased was clearly of a nature that would raise a very real fear in your mind both as a resident of a remote dwelling and as a parent."
Justice Burns found three assault convictions between 1997 and 2002 were not reflective of Kellett's current character.
The man who died was living at the Venndale Rehabilitation Centre, four kilometres from the Kelletts' home.
The reason why he left the facility and went to Kellett's home are unknown.
The men were not known to each other, but the victim heard he had been seen by staff and visitors at the rehab centre displaying some irrational and paranoid behaviours the day before the shooting.
His former partner who was struggling with post-natal depression had told him she was going to harm their infant son.
In his sentencing Justice Burns noted Kellett's early guilty plea and reduced a sentence of six years and six months imprisonment to four years and ten months, backdated to his arrest.
Three years of the sentence are to be suspended, meaning Kellett will be released in January 2024.
