A man convicted of sexually and emotionally abusing a teenaged girl for years was handed a sentence 50 per cent longer than requested in a joint submission by Crown and defence in a rare decision by a provincial court judge.
Andrew Mullaly elicited no emotion in courtroom 203 at the Chilliwack Law Courts on June 21 as Judge Andrea Ormiston sentenced him to 18 months jail followed by three years probation, the maximum allowed under the charge conviction.
Crown counsel Grant Lindsey and Mullaly’s lawyer Darrel Schultz had put forth a joint submission in April for one year in jail followed by 18 months probation.
Judge Ormiston decided that sentence for Mullaly who committed as many as two dozen acts of “sexual humiliation” on the girl between the ages of 11 and 16 was “not only unfit but one that is contrary to the public interest.”
In rejecting the joint submission, the judge pointed to a Supreme Court of Canada (SCC) decision that said joint submissions should not be rejected unless that sentence would be contrary to the public interest. In R v Anthony Cook, a decision delivered by Justice Michael Moldaver of the SCC, it was made clear that a joint submission should not be rejected lightly.
“Joint submissions promote the smooth operation of the criminal justice system,” Moldaver wrote. “The appellant gave up his right to a trial and any self-defence argument he may have had. In the end, the trial judge’s deviation from the recommended custodial sentence — by only six months — amounts to little more than tinkering.”
In Canadian law, judges are not bound by joint submissions, however, the courts are generally reluctant to divert from what is proposed by both Crown or defence assuming there is case law showing similar sentences for similar crimes.
Ormiston decided, however, that in this case the submission was indeed not in the public interest.
“I find that under the specific circumstances of this plea agreement, one year cannot be reconciled with the principles and ranges established in the authorities,” she said.
“I find the joint submission is contrary to the public interest and I’m rejecting it.”
Mullaly was charged with sexual assault, extortion and possession of child pornography for ongoing abuse of the girl from the time she was 11 until 16. The multi-year abuse and humiliation began with emotional “punishment” that expanded to repeated instances of sexual touching and sexual assault.
During the brief hearing on April 12, Lindsey read parts of a victim impact statement from the girl, in which she said she felt “used, manipulated, hopeless, ashamed.”
It was then in court that Judge Ormiston first raised the spectre of rejecting the joint submission, based on her concerns about the serious nature of the facts, the brevity with which case law was presented, and the rushed nature of the hearing late on a Friday afternoon.
As part of the plea agreement, Crown proceeded summarily rather than by indictment, which meant the conviction to which he pleaded is substantially less serious than if it were to be heard in BC Supreme Court.
As the sentence was read out and he was taken away by a sheriff to jail, Mullaly expressed no emotion.
Another wrinkle in the case occurred after the April sentencing hearing when local Crown counsel — ordered by the provincial Public Prosecution Service — applied to extend the standard publication ban name on the identity of the victim to include Mullaly’s name.
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The application, unsurprisingly supported by Mullaly, was left undecided upon between April and the June 20 appearance. In the interim, Judge Ormiston asked Crown to ask the victim her perspective on extending the publication ban to Mullaly.
“They are not concerned with the mentioning of his name in the newspaper,” Lindsey said in court on June 20.
Ormiston then explained how the singular concern of the court is of the privacy of the victim. She pointed to the fact that the Crown was not seeking a remedy for past instances when Mullaly’s name was used, and no evidence of a publication ban violation was presented in court.
“Today I have the added evidence that the victim does not share the Crown’s concerns,” she said, adding that there was nothing presented to her to explain why Mullaly’s name should not appear in print.
“I simply cannot make that finding on the specific evidence that has been heard here in court.”
She left the original publication ban on any information that could identify the victim in place, thereby leaving the onus on the media to not reveal her identity.