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A man who fatally shot a 26-year-old home intruder near Cather has been sentenced to four years and 10 months in prison, but will serve less than two years for the crime.
Key Points:
- Kim Kellett, 38, pleaded guilty to involuntary manslaughter in October.
- Kellett was sentenced to four years and ten months in prison for the offence, with three years suspended
- The court accepted that the shot was not intended to kill the victim
Kim Kellett, 39, was woken by his wife’s screams at 4am on March 17 this year after someone entered their home through the unlocked front door.
After an initial chase, the alleged intruder returned, after which Kellett fired a shot into his driveway, striking and killing the man.
The intruder is a resident of a nearby alcohol rehabilitation facility.
In his sentencing, Justice John Burns said Kellett’s decision to fire a shot was reckless and risked “serious harm or death”.
“Staying indoors may be the wisest reason, but it doesn’t guarantee the safety of you or your family,” he said.
“You should not have known whether the deceased was alone or in a group, whether he had access to weapons or what he intended to do.”
Kellett was initially charged with murder, but pleaded guilty to manslaughter.
Justice John Burns said the sentence of four years and ten months will be suspended from January 2024.
Kellett casually shot into the darkness
When the man returned after the initial drive, Kellett’s wife called police at 4:08 a.m. and told operators he had a gun.
During the eight-minute phone call, her husband warned the operator: “Hurry up because he’s going to get shot and my kids are here.”
The Northern Supreme Court heard Kellett left the house again with the rifle after hearing commotion around his property.
Kellett, armed with a .308 rifle, fired from his front driveway in the direction of the noise. The shot hit the victim in the chest.
After police arrived, Kellett told officers he “only fired a warning shot”.
The 26-year-old man died around five in the morning.
During last month’s hearing, Kellett’s lawyer, John Tippett KC, said Kellett “fired to let the man know he had a gun and he should back off”.
“He was casually firing into the dark, chest height, and couldn’t see the guy when he fired,” Tippett said.
The prosecution argued that the shooting was not motivated by security concerns
In his earlier arguments, Crown prosecutor Marty Ost argued that Kellett was not out of concern for his family’s safety, but because he was angry that the deceased had broken into his home.
Justice Burns rejected that argument, saying there was no evidence to support it.
He found that Kellett had a legitimate fear as the man had entered his property in the middle of the night wearing only boxer shorts.
“We cannot know now why the deceased decided to enter your house dressed in midnight clothes … but you did not know the deceased and you knew nothing of his background.
“All you know is that he’s a guy who walks into your house in the early morning partially undressed.
“The conduct of the deceased was such as to strike a very real fear in your mind as a resident of a remote abode and as a parent.”
Justice Burns found the three assault convictions between 1997 and 2002 did not reflect Kellett’s current character.
He died at the Wendale Rehabilitation Center, four kilometers from the Kellets’ home.
The reason why he left the facility and went to Kellett’s house is unknown.
The men did not know each other, but the day before the shooting, the victim heard that staff and visitors to the rehab center had seen him exhibiting some irrational and paranoid behavior.
His ex-partner, who was struggling with postpartum depression, had said she was going to harm his baby.
In his sentencing, Justice Burns noted Kellett’s early guilty plea and reduced his sentence from six years and six months to four years and ten months.
The three-year sentence is to be suspended, meaning Kellett will be released in January 2024.
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