Guilty plea - Despite Fischer's protracted struggle to prove his absolute innocence, when the state came to an understanding and conclusion that the evidentiary basis as it became apparent, together with the arguments for protection from justice, justified not continuing the investigation of the original indictment, Fischer finally agreed to the plea bargain offered to him and admitted to the amended indictment, which entailed both taking responsibility for the acts and saving judicial time and additional public resources. Considering that the defense affair was at its beginning.
- Alongside the importance of these personal and family circumstances, it is worth reiterating that in accordance with the case law cited above, the weight of circumstances of this type in the context of offenses of moral integrity, and especially in bribery offenses, is relatively low, since the considerations of punishment in these offenses require that the need for public deterrence be preferred over personal considerations, and given that for the most part, it is precisely the normative status of the defendant prior to the commission of the offense that paved the way for its commission.
Protection from Justice
- The stages of building judicial discretion in punishment, as they are presented in the A1 of Chapter 6 of Penal Law which was added in Amendment 113, places the circumstances unrelated to the commission of the offense as a consideration for determining the appropriate punishment for the defendant."Inside the Appropriate Punishment Compound" (Section 40C(b) to the law), and not as a consideration that may lead to deviation from the appropriate penalty range (section 40K risha), or as a consideration that influences the determination of the penalty range itself (section 40C(a)). This is with the exception of considerations of rehabilitation or protection of public safety, in the presence of which the court may deviate from the compound (section 40C(b)). Nevertheless, the case law recognized the possible effect of the external circumstances for the commission of the offense on deviation from the premises. In Parashat Lupoliansky (Criminal Appeal 5669/14, judgment of December 29, 2015, in Criminal Appeal 4456/14 et al.) the view was adopted that the court may impose penalties that deviate from the scope or severity of the compound due to considerations of justice, even if these are not considerations of rehabilitation or protection of public safety, since these considerations explicitly mentioned in the law do not constitute a 'closed list' (ibid., paragraphs 214-220 of the judgment of Justice Vogelman. See also: Y. Livdru "Deviation from the appropriate punishment range for reasons of justice" The defense attorney 197-198, 4, pp. 8-9 (2013); A. Theft –Eyal: "Exceeding the appropriate punishment range" (The Book of Dorit Beinisch 539, 565-561 (2018)). This result is necessitated by the principle of proportionality in punishment, which is one of the aspects of the principle of proportionality, and from which derives the court's duty to ensure that the sentence imposed on the concrete defendant is proportionate in relation to the severity of his actions and his guilt. Judicial discretion, which runs like a thread throughout all stages of sentencing and does not cease to exist at any stage, leaves the door to deviation from the scope of the appropriate punishment due to considerations of justice, in those exceptional and extreme cases that require it (see more Criminal Appeals Authority 6621/23 State of Israel v. Green, paragraph 8 of Justice Sohlberg's judgment (April 7, 2025); Criminal Appeal 6692/23 Zelkov v. State of Israel, paragraph 25 (July 21, 2024); Criminal Appeal 5750/16 State of Israel v. Hashan, paragraph 12 (April 23, 2017); Criminal Appeal 5703/22 Ben Zion v. State of Israel, paragraph 12 (9.11.2022)).
- Consideration of considerations of justice as a reason for deviating from the scope of the appropriate punishment is required even when considerations of justice derive from the conduct of the law enforcement authorities that establishes a claim of protection from justice where "The filing of the indictment or the conduct of the criminal proceedings are in fundamental contradiction to the principles of justice and legal fairness" (Section 149(10) of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter: Kindness)). Admittedly Section 40K(9) Enumerates "Conduct of Law Enforcement Authorities" as one of the circumstances unrelated to the commission of the offense that can be taken into account in sentencing the appropriate punishment for the defendant. However, taking into account this consideration is possible according to the section only for the purpose of locating the appropriate punishment within the appropriate penalty area, and not as a consideration that allows deviation from the range. Similarly, the aforementioned consideration In section 40k(10): "The passage of time from the time the offense was committed", which sometimes involves (as in our case) a claim of protection from justice. Therefore, deviation from the scope of the voice for reasons of protection from justice is done by virtue of case law and not by virtue of one of the statutory stages in structuring judicial discretion in punishment. Judge Hendel v.Criminal Appeal 7621/14 Gottesdiener v. State of Israel, paragraph 50 (March 1, 2017):
"The application of the doctrine means, as I have noted, that the intensity of the circumstances surrounding the moment of the event is such that it can affect not only the circumstances that are not related to the commission of the offense, but also the act of the offense itself. In the formal sense, this is reflected in the fact that while taking into account the circumstances of the offense that are not related to its commission, according to Amendment 113 to the Penal Law, may only affect the sentencing of the sentence within the prescribed area; The application of protection from justice may also affect the determination of the penalty range itself, or more precisely, the starting point and even the end point of the punitive outcome".