Despite a joint submission of one year in jail and 18 months probation, a Chilliwack provincial court judge sentenced Andrew Mullaly to 18 months jail and three years probation for the ongoing sexual assault of a girl between the ages of 11 and 16. (Facebook)

B.C. judge defies lawyers and adds six months to man’s sex assault sentence

‘I find the joint submission is contrary to the public interest and I’m rejecting it’

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.”

• READ MORE: Judge questions joint submission for Chilliwack man who sexually assaulted girl

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.

• READ MORE: OPINION: When observation affects what is observed

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.


@PeeJayAitch
paul.henderson@theprogress.com

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Suspicious fire started in West Trail

A fire broke out on Tamarac Ave. Saturday morning, causing damage to two homes

RCMP, Regional fire rescue investigate string of suspicious fires in Marsh Creek

Arson is the likely cause of three fires lit near Marsh Creek Road near Frutivale on Friday

Lightning blamed for multiple fire starts across Kootenays

Southeast Fire Centre says ground crews, air support responding to fires near Revelstoke, Nakusp

QUIZ: How much do you know about British Columbia?

On this B.C. Day long weekend, put your knowledge of our province to the test

VIDEO: Otter pups learn to swim at B.C. wildlife rescue facility

Watch Critter Care’s Nathan Wagstaffe help seven young otters go for their first dip

Alleged impaired driver sparks small wildfire near Lytton after crash: B.C. RCMP

Good Samaritans prevented the blaze from getting out of control

Travel restrictions inspiring co-operation in border communities

Small border towns are asking for exemption to travel ban

B.C. First Nation adopts ‘digital twinning’ software to better manage territory

Software allows users to visualize what a mountain might look like if the trees on its slopes were logged

All inquiry recommendations implemented after fatal Port Hardy RCMP shooting: Ministry

The Independent Investigations Office of B.C. cleared the RCMP officers involved of wrongdoing

Leave your deets when dining: Restaurants taking personal info to trace COVID-19

Health officials say indoor dining presents a higher risk

Raptors kneel for both American and Canadian anthems ahead of tipoff

Majority of players have substituted their names on the backs of their jerseys with racial and social justice messages

Wild’s Mathew Dumba makes anti-racism speech, kneels ahead of Blackhawks vs. Oilers

Matt Dumba, 26, took to center ice to speak on behalf of fellow members of the Hockey Diversity Alliance

Most Read