Prison would be an "unduly cruel" punishment for a man who recklessly fired an illegal rifle over the heads of two teenaged boys at Somerset in 2018, a judge has said.
On Thursday, John William Milligan was found guilty by a jury in the Burnie Supreme Court of two firearms offences relating to the incident at his home on November 4 of that year.
The shot came after Milligan had fired a gel blaster at the teenagers, after which they became angry and damaged his property with a baseball bat.
The jury found he was guilty of unlicensed possession and recklessly discharging a firearm.
Supreme Court Chief Justice Alan Blow proceeded immediately to sentence the 65-year-old former postman for his crimes, which he said would ordinarily attract a prison sentence.
However, having just heard from defence lawyer Julia Ker about the extent of Milligan's poor health, the judge wholly suspended a six month jail term and fined him $1000.
Ms Ker told the judge Milligan suffered from chronic nerve and joint pain and, as had been seen throughout the trial, required the use of a walking frame.
She said he also suffered from emphysema due to a lifelong smoking habit, and that his health was generally managed by his GP.
"It would be unduly cruel to send you to prison," Chief Justice Blow said.
Ms Ker said she accepted the jury had found her client acted recklessly when he fired the shot through the window, but said the judge could still find Milligan had acted in self-defence.
"It is open to your honour to sentence on the basis Mr Milligan did perceive a need to defend himself and his property... but that the jury found it was an unreasonable and disproportionate response to the circumstances," Ms Ker said.
Crown prosecutor Katie Edwards accepted Milligan may have perceived a need to defend his property, and both lawyers stated each party involved had multiple opportunities to deescalate the situation.
Ms Edwards said Milligan had exacerbated the situation by firing at them with the gel blaster, and Chief Justice Blow agreed and said that action "initiated the violence".
The judge said he accepted Milligan feared for his safety, but as an inexperienced rifleman using an illegal firearm he had committed a "very serious" crime.
Sandy Powell
Court and crime reporter covering the West and North-West of Tasmania for the Advocate.
Court and crime reporter covering the West and North-West of Tasmania for the Advocate.
