A case described as “rare and unique” was settled in a Belleville courtroom Thursday.
Nick Mallan, 37, had previously pleaded guilty to Mischief Under $5,000 and was sentenced to 18 months probation and given a Conditional Discharge after an incident last summer involving the death of his father John (known to many as Jack) Mallan.
In the early morning of July 11 a jogger spotted a small fire outside a house on Bridge Street East in Belleville and quickly put it out. The jogger also spotted a man (Nick Mallan) sitting near the house and another person lying on the ground mostly covered in a blanket.
The jogger left the scene and police and paramedics responded to discover the person lying down was dead and had been for at least 24 hours. That man was 72-year-old John Mallan and his body was lying on a cart dolly.
After investigation Mallan’s son Nick was charged with Arson, Mischief Under $5,000, and Indignity to a Human Body. The arson and indignity charges were later withdrawn.
The younger Mallan lived with his father, and struggled with drug addiction and mental health issues and was very dependent on his father. He later admitted to being on a “downward spiral” at the time of the incident.
During the investigation Mallan said he had discovered his father’s body two or three days prior to July 11 and decided to burn the house down while remaining inside in the bathtub to commit suicide and “burn down the memories.”
Mallan spent some time in jail and then spent time in a Kingston hospital taking psychological treatment and afterward lived with members of a “very supportive” extended family while following all directions on treatment and counselling as the legal process continued.
At court Thursday Crown Attorney Pardeep Bhachu asked Justice Elaine Deluzio to sentence Mallan to 18 months probation with strict conditions on drug and alcohol use, along with counselling. Along with the probation Bhachu asked that a conviction be registered on the Mischief charge saying that despite the severity of Mallan’s addiction and mental health issues setting a fire near a house was still a serious offence.
The Crown Attorney praised Mallan for his adherence to a regime of counselling and treatment, noting his early guilty plea, the fact that he was not responsible for his father’s death, and strong family support ever since the incident occurred.
For his part, Mallan’s lawyer Pieter Kort asked Justice Deluzio for 18 months probation along with a Conditional Discharge while acknowledging the Crown’s position was “not unreasonable.”
Kort said his client had been suffering with very serious addictions and mental health challenges during a pandemic and just couldn’t respond appropriately to his father’s death.
Kort noted his client’s plea, his being a first time offender, his complying with all conditions demanded of him, his obvious remorse, and the rock steady support of his extended family.
“The only victims in this tragedy are really only the Mallan family. Putting a conviction on his (Mallan’s) record could hinder him if he tries to pursue a better life after his probationary period.”
Justice Deluzio asked for comment from Mallan himself.
“I appreciate the lawyers and you (judge) considering just probation for me. I fully understand how serious that fire could have been. I was very scared and on a downward spiral.”
Mallan went on to say he had been doing whatever had been asked of him including staying off non-prescription drugs and alcohol and was ready to move on with his life. “I’m in a much better place now and I want more help and I’m ready to take it.”
Mallan said he used to hide his addiction issues from his family but now “it is out in the open and I’m communicating honestly with my family and they fully support me.”
Justice Deluzio described the case as a very “difficult one”, saying the Crown and Defence weren’t very far apart on their sentencing submissions.
The judge immediately dismissed any time in custody as a “backward step” and said her decision centred on whether a conviction be placed on record or not.
She sided with lawyer Kort’s position and addressed Mallan. “In my view the public won’t be served by a conviction as you and your family were the only victims. The past months have been positive for you as your extended family has rallied around you and a criminal record won’t help you if you move on.”
Mallan will serve 18 months probation, with many conditions, and was given a Conditional Discharge.
Justice Deluzio commended both Bhachu and Kort for working so cooperatively on a complex case.
