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When deciding a sentence, a judge must deal with the offence that the offender has been convicted of, taking into account the unique circumstances of each particular case. The judge will carefully consider the facts that are presented to the Court by both the prosecution and by the defence.
Read more about victims of crime and sentencing.
HMA v Paul Balarsky
Mar 26, 2021
On sentencing, Sheriff Mackenzie made the following statement in court:
“You were found guilty of committing four sexual assaults on three different female complainers who were known to you, one when she was aged 15 and again when she 16, one aged 14 and one aged 17.
The first offence was committed at the end of April 2017 when you were 16 and the complainer was 15. At a party, when she was intoxicated and had gone to lie down you joined her, lay next to her, attempted to remove her clothing and touched her on the body. On another occasion in March 2018 you lay next to the same complainer while she was asleep, placed your hands on her buttocks and breasts and touched her vagina. I recognise that on that latter occasion there had been consensual sexual activity before she fell asleep beside you and that when you acted in the manner set out in the charge her reaction was simply to turn over and fall asleep again at which point you did nothing further.
The offence involving a 14 year old, when you were 16, occurred when she and another female friend, having consumed alcohol, visited you at your mother’s home and joined you in your bedroom. You supplied her with more alcohol and while her friend was at the bathroom and while the complainer was intoxicated you lay on top of her, attempted to kiss her, orally and digitally penetrated her vagina, and attempted to remove her lower clothing.
The offence involving the last complainer, occurred when you were both 17. Following a gathering of friends at your father’s home one evening, after nearly all present had gone home only you, one other male and the complainer remained. You all fell asleep in the living room. The complainer woke up and went to lie down in your bedroom. After some time you joined her and while she lay asleep you lay beside her, touched her and repeatedly attempted to unfasten her trousers. She awoke and was utterly shocked by your behaviour, reporting the matter to the police within days.
What is deeply concerning in this pattern of offending is that your advances were made when the complainers were either intoxicated or asleep and consequently unable to give consent. Of further concern is the conclusion of the Criminal Justice Social Work Report for which I have called which states that you display limited empathy towards the complainers and that your views in relation to consent and intimate relationships are skewed.
I have considered carefully the terms of the report and all that has been presented in mitigation. I recognise that you were 16 at the time of two of the offences, and 17 at the time of the other two. I recognise that you appear before me as a first offender. Given your age you are afforded the protection of section 207(3) of the Criminal Procedure (Scotland) Act 1995 and I should not impose a sentence of detention upon you unless I am satisfied that no other method of dealing with you is appropriate. I have considered the Sentencing Guideline on the Principles and Purposes of Sentencing issued by the Scottish Sentencing Council. Given your age rehabilitation is a primary sentencing purpose. I recognise that in the report before me you are assessed as a minimum risk of re-offending and you are considered suitable for a community disposal.
In selecting an appropriate sentence for this catalogue of offending I have considered the stringent requirements which will be placed upon you as a consequence of my disposal in terms of the Sexual Offences notification requirements .
As a direct alternative to a sentence of detention I am proposing, provided you agree to comply with its terms, to impose a Community Payback Order requiring you (1) to be subject to supervision for a period of 3 years to address, amongst other issues, your attitudes in relation to the current matters and victim awareness and (2) to carry out 300 hours of unpaid work or other activity within the next 12 months, being the maximum number of hours which can be imposed.
You will be subject to the Sexual Offences notification requirements for the period prescribed by law.”