(c) In determining the amount of the fine under this section, the court may take into account, inter alia, the effect that the removal of the fine will have on the defendant's ability to compensate the injured party for the damage caused to him by the offense.
(d) The determination of the fine according to the value of the damage caused or the benefit derived shall be the same as their value on the day the offense was committed or on the day of the court's decision, whichever is greater."
The damages from the false reports are enormous, as detailed above, and Africa Industries was forced to reduce its capital by tens of millions of shekels.
5.4.2 Determining the Punishment Compound – From the General to the Individual
From all of the above, it emerges that the offense committed by the defendants in their circumstances is serious offenses that harm the capital market and the economy as a whole. Since we are dealing with a corporation, and not with a human being, the determination of the penalty area relates only to the payment of a fine. In this regard, section 40H of the Penal Law states that: "If the court determines that the appropriate penalty includes a fine penalty, it shall take into account, in addition to what is stated in section 40C(a), the defendant's financial situation, for the purpose of determining the appropriate penalty range.
According to the Goldberg Commission report, it is necessary to learn about the defendant's financial situation, the value of his assets and his average income (when compensation is also awarded to the victim of the offense, the effect of the fine on the defendant's ability to bear the compensation must also be examined). According to the committee's recommendations, the defendant's financial situation will act as a consideration for severity, when we are dealing with, as in the case before me, large corporations (see p. 19 of the Goldberg Commission report).
In Crim. Appeal 1656/16 Yeshayahu Davidovich v. State of Israel (published in Nevo, March 20, 2017, hereinafter: the Davidovich case), it was held that (paragraph 113 of the judgment of the Honorable Justice Y. Danziger):