Incident 11 – In this incident the appellant was convicted of 3 offenses of simple assault (while in the other incidents she was convicted of one offense each). The trial court ruled that the appellant approached A.L., who was lying on his back, and with an aggressive and violent movement turned him over; Then you go up to the toddler lying on a mattress and pull him to turn him over on his back, while aggressively grasping his right leg; And a few minutes later, she returns to the same toddler, swinging him with his right hand and aggressively leading him to another room. The appeal in relation to this event must be accepted in relation to its first two parts; and postpone it in relation to the last part of the event. In the first two cases, the appellant performs a clear function of putting the children to sleep. It acts, as is clearly evident from the videos, aggressively. There is no dispute about this. This is not the desirable and expected way of defensiveness, and therefore it justifies criticism on the professional level. However, I did not get the impression that the deviation from the norm in these cases is so pronounced that it also crosses the criminal threshold. Things are different in relation to the third part of the event at hand. In this section, as stated, the conviction must be left in place. The appellant is aggressive and aggressive towards the child, while lifting him in the air and holding his hand. This is a clear use of force, which, according to the videos, has no clear purpose related to promoting the conduct of the kindergarten; It is also evident that the minor suffers from being held in his hand by the appellant.
- To summarize the discussion of the offenses of assault: the appellant should be acquitted of the offense of assault of a minor; two offenses of assault of a minor should be replaced with mere assault; and the appellant should be acquitted of 18 offenses of simple assault. Therefore, I would suggest to my colleagues that the appellant be convicted of 2 offenses of assault of a minor (instead of 5 offenses of assault of a minor) and 17 offenses of simple assault (instead of 32 offenses of simple assault) (see a summary table at the end of the hearing of the judgment in paragraph 37 below).
- In conclusion, I would like to address two additional arguments raised by the parties, which should be rejected. The first argument was raised by the appellant, according to which her actions did not constitute an assault since they were done in broad daylight in front of the kindergarten staff (and in some cases in front of her husband). Unfortunately, however, there are particularly serious cases of violence perpetrated in kindergartens by all (or most) of the kindergarten staff, or in their presence. It is clear that the fact that the acts are committed in broad daylight does not distinguish between criminal acts and those that are not (see, for example, the Binyamin case, in which the appellant and five other staff members were convicted of committing violent offenses against the toddlers).
The Claim The second It was raised by the State, according to which although not all of the appellant's acts, when isolated one by one, amount to a criminal offense – so that there was no room for prosecution for them – when viewed as a whole, they should all be regarded as criminal. I cannot accept this argument either. In fact, this is an attempt to apply the "accumulation thesis" that was recognized by the Criminal Appeals Authority in this case 6477/20 Shaham v. State of Israel [Nevo] (November 15, 2021) (hereinafter: The Shaham Affair) (A petition for an additional hearing on the judgment was rejected in the framework of the Additional Criminal Hearing 8227/21 Shaham v. State of Israel [Nevo] (January 16, 2022)) in relation to the offense of breach of trust. Without planting rivets on the matter, I do not believe that this rule can be applied in relation to the offenses of assault that are the subject of our discussion, since they are each defined in a concrete and specific manner with respect to each event. In my view, the accumulation thesis may be relevant in offenses such as abuse, which may crystallize in relation to a series of separate acts (see Shaham, in paragraph 9 of the Deputy President's opinion Handel). In any event, this argument was not raised by the State in detail, and therefore I have not found it possible to determine in the matter of rivets.