STATE OF TASMANIA v DEVIN EILANDER 8 MAY 2020
COMMENTS ON PASSING SENTENCE PEARCE J
Devin Eilander, you plead guilty to aggravated assault and making a false statutory declaration. I also agreed to deal with your plea of guilty to the summary charges of using a firearm without a licence and using a firearm while under the influence of alcohol. From about 6.30 pm on Friday 9 March 2018 you were, with others, at the home of your long term friend, Bradley Heys, in Youngtown, drinking and socialising. You drank beer throughout the evening. At Mr Heys’ invitation, you and others entertained yourselves by using an air rifle he brought out to shoot at targets in the back yard. The air rifle was registered to his brother. You had no licence to use it, and, as events proved, you certainly should not have been doing so while you were affected by alcohol. By around 11.30 pm some of the guests had gone. Mr Heys, from a grassed area near the rear deck, about 10 to 15 metres away from you, said he was going to bed. You had just loaded the air rifle intending to shoot at a can. You pointed the rifle in his direction and pulled the trigger. It was a spontaneous prank in response to his announcement that he was leaving the gathering. You intended that Mr Heys be struck with the pellet, but believed from your limited previous experience with another type of air gun, that it would only cause a sting or welt. However, when the pellet struck him in the lower left stomach, it did much more damage than that. He immediately collapsed to the ground in pain. You saw the hole in his stomach. As later became apparent, but which was unknown to you at the time, the rifle pellet entered Heys’ abdomen and perforated his bowel in four places. Realising that something serious had happened, you and another man took him to hospital. On the way Mr Heys suggested, so that you did not get into trouble, that you all say that he accidentally shot himself when the loaded rifle he was carrying struck a door. That is what he said to the police before he was taken to surgery. When you were spoken to by the police you gave the same false story. On the following day you made a statutory declaration containing the same lie, with other false detail including that you had not seen the rifle that night, that you were not present when anyone else was using it, and that you did not see Mr Heys being shot.
The police interviewed other witnesses and the truth began to emerge. On Sunday 11 March 2018 you contacted the police, and in a formal interview you admitted that it was you who fired the gun. At first, your account was still not entirely frank because part of what you said was that you were having a joke and the gun accidentally discharged. However, by the end of the interview you admitted what you now accept to be true, that you aimed the gun at Mr Heys and intentionally pulled the trigger, intending that the pellet would strike him, but expecting that it would cause him some transient pain but not injure him.
During the surgery, one of the holes in Mr Heys’ bowel was repaired with sutures. The other holes required removal of the damaged section of bowel. Despite the operation and a six day hospital stay, Mr Heys made a full recovery without any long term effects. You have remained good friends. He has written a letter of support saying that his life continues as before.
You are aged 29. You were 27 when this occurred. You have no relevant prior convictions and have led an otherwise blameless life. You are single with no dependants. You have a stable income, but you are paying a mortgage on your home. You are an electrician with specialist qualifications and training. You have worked for your current employer for 8 years and are held in very high regard both personally and professionally. I am satisfied that, as soon as you realised that Mr Heys was hurt, you were sorry for what had happened to him. It is in your favour that you have pleaded guilty. You were originally charged with causing grievous bodily harm. That charge requires proof that when you discharged the gun you intended or at least realised the risk of serious injury. It is easy to see why the State decided to not proceed with it, and thereafter you quickly pleaded guilty. I accept your counsel’s submission that, at a time when jury trials are indefinitely delayed by the COVID-19 pandemic, facilitation of the administration of justice by guilty pleas is a factor of greater than usual weight.
As is so often the case, your conduct was made immeasurably worse by the lies which were told. Making a false declaration is a serious matter. It undermines the law, and has the potential to bring the justice system into disrepute. In this case, some police time was wasted, but you told the truth relatively quickly. Assault with a firearm which resulted in such injuries would also normally be regarded as serious. However, although this case involved a high level of stupidity and misjudgment, it involved a relatively low level of criminality. The recording of convictions for crimes of this nature may affect your life in other ways. I think that it is unlikely that you will do something like this again. I have concluded that the firearm offences and assault are properly dealt with by fine. To emphasise to you and others the care required in dealing with firearms it should be a fine of substance. You do not require supervision in the community. A community correction order with the requirement for community service is the proper response to the charge of making a false declaration. There are limited programs available at the moment but hopefully that situation will rectify itself in due course.
Devin Eilander, you are convicted on each count to which you have pleaded guilty. On the charge of aggravated assault, and on counts 2 and 3 on complaint 33104/20, the firearm charges, I impose one sentence. You are fined $3,000. I may only give you 28 days to pay that sum. If you require longer you may apply to enter into a repayment arrangement. On the charge of making a false declaration I make a community correction order for a period of 18 months from today. The core conditions of that order will be specified in the order you will be given, but include that you not commit an offence punishable by imprisonment, that you report to and comply with the directions of a probation officer, that you must not leave Tasmania without permission, and that you must notify of any change of address. I impose a special condition that you must, within the operational period of the order – 18 months – satisfactorily perform 49 hours of community service, as directed by a probation officer or a supervisor. If you breach any of those conditions you may be brought back to court and re-sentenced.