Counsel for the state, on the other hand, argued that the appellant should be convicted of count 15 of the offense of neglect, in lieu of her conviction for the offense of abuse (with regard to leaving the child in his wet clothes); and that Indictment 16 was proven from the moment the videos show cruel and severe cases of violence committed in front of the kindergarten children, and they can even be seen as the children's fear. With regard to the sentence, the state agreed that there was room to reduce the sentence imposed on the appellant to some extent, due to the change from the offense of abuse to the offense of negligence. However, given her serious actions; In light of what is stated in the report of the victims of the offense; In view of deterrence considerations, the punishment should not be significantly reduced.
We also heard from the mother of the minor mentioned in Charge 15, who briefly shared the difficulties faced by the families of kindergarten children; and especially in the difficulties faced by her son and her family.
- At the end of the hearing, and after we had commented on what we had commented, we recommended that counsel for the parties come to terms with each other in order to try to formulate agreements. Subsequently, on May 26, 2025, the state announced that it was having difficulty formulating a position regarding the possibility of reducing the appellant's sentence, and therefore requested that the decision be left to the court. Subsequently, we submitted a concrete compromise proposal, but on June 12, 2025, the state announced that after seriously considering our proposal, it insists on its request to leave the decision in the case to the court. Counsel for the appellant stated that in view of the state's notice, his position is superfluous in any case. In these circumstances, we are left with no choice but to decide the appeal on its merits.
Discussion and Decision
- After reviewing the written and oral arguments of the parties, and watching the videos documenting the appellant's actions, I came to the conclusion that the appeal should be accepted in part, so that the appellant would be acquitted of a significant part of the offenses of which she was convicted. As a result of this, and for other reasons that will be detailed below, I was of the opinion that the prison sentence imposed on her should be significantly shortened, and set at 18 months in prison. I will detail my reasons below. As requested, I will open the hearing of the appeal against the verdict, and then move on to the hearing of the appeal against the sentence.
The Verdict
- It is a well-known rule that it is not the way of the appellate court to interfere with the findings of fact and the reliability of the trial court, except in exceptional cases only. This rule expresses the recognition that the trial court is the one that is directly and directly impressed by the parties and by the evidence and testimonies brought before it, and therefore, as a rule, it has an advantage over the trial court (see, among the plural: Criminal Appeal 7162/19 Rosh v. State of Israel, para. 15 [Nevo] (January 3, 2021); Criminal Appeal 1745/20 Aqel v. State of Israel, para. 17 [Nevo] (February 11, 2021)). However, there are a number of exceptions to this rule. As I have had the opportunity to explain in the past, "According to those exceptions, intervention of this type is possible in cases where, for example, we are dealing with conclusions that arise from the facts, and not the facts themselves; When the determinations are based on considerations of logic and reasonableness of testimony in relation to all the evidence in the case; where the conclusions of the trial court were based on written evidence, tape transcripts or objects; in cases where there are material contradictions in the testimonies that were not considered, or in a material error in the assessment of the credibility of the witnesses; when the trial court completely ignored certain evidence, or it was absent from its eyes; and when the trial court adopted a baseless and illogical version" (Criminal Appeal 6174/23 Abu Agag v. State of Israel, Paragraph 11 and the references there [Nevo] (August 6, 2024) (emphasis added)). Accordingly, in our case, it is possible to deviate from the aforementioned rule of non-intervention, since the trial court's ruling was based, mainly, on the documentation appearing in the videos – and with respect to evidence of this kind, as stated, the trial court has no real advantage over this court (ibid., at paragraph 12). See also Criminal Appeal 3947/12 Saleh v. State of Israel, para. 28 [Nevo] (January 21, 2013)). It should be clarified that even given the exceptions to the rule of intervention, the appellate court does not become the trial court, and therefore it is not required to re-examine (de-novo) the entirety of the evidence. As a result, even when the documentation exception exists, the appellate court's intervention in evidentiary determinations will not be done as a matter of routine, but only when it is convinced that there was a material error in the analysis of the evidence by the trial court (see and compare: Criminal Appeal 37/07 Pereg v. State of Israel, para. 28 [Nevo] (March 10, 2008); Criminal Appeal 6073/11 Segal v. State of Israel, para. 25 [Nevo] (June 11, 2012); Criminal Appeal 7659/15 Harush v. State of Israel, para. 28 [Nevo] (April 20, 2016)).
- Let us now turn to the judgment on its merits. As stated, the appellant was convicted of three different types of offenses: the offenses of assault – simple assault and assault of a minor or helpless; the offense of leaving a child unsupervised; and the offense of abuse of a minor or helpless person. I will discuss below these offenses in their order.
Assault offenses
- As noted above, the appellant was convicted of 32 offenses of mere assault; and 5 counts of assaulting a minor. According to her, she is credited with a significant portion of these offenses, for the reason that the acts described in them do not amount to criminal offenses. The appellant admits, indeed, that she acted aggressively towards the children, but in her opinion it was not an assault.
- Let us begin with the language of the provisions of the law that are relevant to our discussion. First of all, an act of "assault" is defined in section 378 of the Penal Law as follows:
A person who strikes, touches, pushes or otherwise exerts force on his body, directly or indirectly, without his consent or consent obtained by fraud – is an assault; and for this purpose, the use of force – including the use of heat, light, electricity, gas, smell or any other thing or substance, if they are used to the extent that it is capable of causing harm or discomfort.