The defense's petition to determine an appropriate sentencing range with a minimum sentence of several months in prison is inconsistent with the mix of offenses of which the defendants were convicted, the number of some of the offenses, and the severity of the circumstances of their commission.
- As to the appropriate fine area (Section 40 h to the Penal Law), after considering the severity of the economic offenses in our case and the circumstances of their commission, the scope of the funds received over the years from the improper activity, and in order for the offender not to benefit from his actions, I found that he should be placed at an amount ranging from ILS 250,000 to ILS 500,000.
It should be noted that apart from what is detailed in the Probation Service reports, the defense did not present evidence about the defendants' financial situation (bank statements, property statements, etc.), nor did it clarify what was done with the funds received from the fraudulent acts.
Argument for deviation from the appropriate punishment range:
- As stated, the defense attorney requested that Kola deviate from the appropriate punishment that will be determined insofar as it begins with actual imprisonment behind bars, and asked that defendants 1 and 2 be satisfied with imposing community service on defendants 1 and 2 as recommended by the Probation Service.
The accuser objected to the deviation from the compound in relation to the two defendants.
- After hearing the arguments of the parties and carefully reading the Probation Service reports, I am of the opinion that there is no room to deviate from the appropriate range of punishment in the case of defendants 1 and 2, and that the personal and family circumstances of defendant 2 will find expression in the determination of her sentence on the floor of the compound, but not beyond that.
- As you know, Section 40D(a) The Penal Law gives the court the discretion to deviate below the appropriate penalty range if it finds "Because the defendant has been rehabilitated or because there is a real chance that he will be rehabilitated".
We are dealing with discretionary authority, and the court must apply it carefully, both for the reason that rehabilitation considerations constitute an exception to the rule underlying Amendment 113 to the Penal Law - the principle of adequacy, and for the reason that some of the considerations relevant to the rehabilitation process are routinely taken into account in the framework of determining the punishment within the complex. See in this regard Criminal Appeal 6637/17 Elizabeth Crandall v. State of Israel (April 18, 2018) (hereinafter: "the Crandall Judgment").