Criminal Case 80042-12-24 Department for the Investigation of Police – Circular v. Ohad Mordechai Goldberg - part 2

The defendant began handcuffing the complainant with his left hand, while he was holding a weapon that was not in his right hand, with his finger on the trigger.

While holding the complainant's left hand after it was handcuffed, with the complainant's right hand remaining on the back of his neck, the defendant fired in the direction of the complainant's back.

As a result of the shooting, the complainant was injured and sustained a gunshot wound at the Turku-Abdominal crossing in the front line of Axila and a gunshot wound slightly below him in the rear line of Axilla, and was evacuated for medical treatment.

In his actions described above, the defendant caused injury to the complainant in a hasty and negligent manner, while committing an act with a firearm in his possession, and did not take proper precautions against the probable danger involved.

2. In light of the aforesaid, the indictment attributes to the defendant an act of recklessness and negligence, an offense under section 338(a)(5) of the Penal Law, 5737-1977 (hereinafter: "the Law").
3. On March 14, 2025, the defendant's response to the charge was given, in writing, in which the defendant denied part of what was attributed to him, along with a confession or partial confession in the other part.
4. On May 19, 2025, the prosecution's case began to be heard, and prosecution witnesses number 1, 3 and 4 testified before me.
5. On June 10, 2025, the defendant filed a motion to amend his reply to the indictment, and after his request was granted, the defendant retracted his denial, admitted the facts of the indictment, and added clarifications to them.
6. On July 6, 2025, the parties announced that they had reached a procedural agreement whereby the defendant would admit the facts of the indictment as he went, while recording the following clarifications:
7. The Ottoman Settlement [Old Version] 1916 In relation to section 1 of the indictment, the relevant date is the culmination of the "Iron Sword" War, when all the security forces, including the Israel Police, were on high alert and alert. As a result, the defendant was issued a long weapon and was obligated to carry it at all times, in addition to his personal weapon.
8. 12-34-56-78 Chekhov v. State of Israel, P.D.  51 (2)With respect to section 2 of the indictment - the defendant stopped at a gas station on his way to search the suspect's house.

• In relation to section 3 of the indictment, the complainant stopped and parked his car diagonally in front of the convenience store, exceeding the marked parking lines. The complainant's car remained immobilized.  Another person remained in the seat next to the driver.  The complainant shouted at the seller, hit the drinking glass and ashtray that were outside the convenience store, spoke to the salesman while waving his hands, and then led them into the convenience store.

7. The parties also announced that it was agreed that files 1-3 of the CD marked P/15 (videos of the incident) would be submitted to the court at the plea stage.
8. On that date, July 6, 2025, on the basis of the defendant's confession, I determined that he had committed the acts attributed to him, which constitute an offense of recklessness and negligence under section 338(a)(5) of the Law, while I refrained from convicting him at that stage.
9. With the consent of the parties, the defendant was referred to receive a report from the Probation Service as well as to examine his suitability for community service.
10. On February 14, 2026, the opinion of the Commissioner of Public Service was submitted, according to which the defendant was found suitable for community service.
11. On October 20, 2025 and February 17, 2026, probation service reports were submitted, as detailed below.
12. The accuser's arguments for punishment:
13. The accuser refers to the protected values that were harmed as a result of the defendant's actions, namely the preservation of human life and dignity, the integrity of the body and the personal safety of the person, as well as the public's trust. In this context, the accuser claims that a police officer is expected to behave professionally, out of responsibility towards the environment and towards every citizen.  The accuser further argues that by virtue of the role of a police officer, he is required to exercise extreme caution when using weapons, certainly when it comes to unjustified use of weapons.
14. The accuser refers to the fact that the procedural framework is the facts of the indictment. According to her, the threshold of the defendant's negligence is high and it was learned, inter alia, from the fact that the defendant testifies that he is not skilled in carrying a long weapon.  This is when a person who is not sufficiently skilled in a long weapon is expected to simply not use it.  The accuser refers to the videos documenting the incident, emphasizing that the complainant had his back to the defendant.  According to her, the incident could have ended differently had it not been for the defendant's negligence.
15. According to the accuser, the defendant acted impulsively and his actions led to the complainant's injury and even to his own injury. This is when the potential for damage is one of the most serious that can be, since the acts could have also led to the deprivation of the life of the complainant and others who were present at the scene.
16. A copy of Nevorefers to the affidavit of the victim of the offense (Tel/1) and the fact that he even testified before the court that he was impressed by him and the harsh consequences of the incident as far as he was concerned. In this context, the accuser emphasizes that the complainant did not commit any criminal offense in the context of the incident that is the subject of the proceeding in question.  The accuser further emphasizes that this is not a situation of self-defense on the part of the accused, neither foreseen nor implied.
17. The accuser believes that the defendant's actions and their consequences are condemnable.
18. The accuser refers to the Probation Service's reports and claims that they are VOID. This, according to her, is because, on the one hand, the defendant confessed to the court, and on the other hand, he told the Probation Service a different story.  According to the accuser, what is stated in the reports indicates that the defendant does not take responsibility and does not stand behind his confession, but rather believes that he acted in self-defense and did what was expected of him.  Further to the above, the accuser claims that the Probation Service's recommendation is based on an analysis of the incident from the defendant's eyes.
19. The accuser relates to the issue of non-conviction and argues that the defendant does not meet the two criteria set out in Criminal Appeal 2083/96 Katab v. State of Israel, IsrSC 52(3) 337 (1997) (hereinafter: "the Written Rule").  According to the accuser, there are no rehabilitation proceedings, and certainly not those that can or should be taken into account, and no concrete damage has been proven (in this context, the accuser refers to the MATAR Ordinance and to the appeal of Petition/Administrative Claim 7000/19 Anonymous v.  Israel Prison Service (May 12, 2021).
20. In light of all of the above, the accuser petitions for the defendant's conviction, for a range of 2 months imprisonment for community service up to 12 months in prison, and for the defendant to be sentenced to seven months of community service, along with an accompanying punishment in the form of VAT and compensation to the complainant.

• The defendant's arguments for punishment:

20. The defendant refers to the fact that at the relevant time, the State of Israel was in a state of emergency due to the "Iron Sword" war that had broken out about two months earlier. As a result, the security forces were on high alert and the police officers were required to carry long weapons everywhere (in addition to the personal weapons they are accustomed to using).  Moreover, at the relevant time, the defendant was on his way to real operational activity.  All of these, according to the defendant, shaped his subjective perception of reality.
21. The defendant refers to videos 1-3 in P/15 and argues that a policeman watching such a situation from the side must not remain indifferent. He did not immediately react to the incident, but watched it first and only later decided to seek contact.  According to the defendant, there can be no dispute that the very act of striving for contact and the beginning of the handcuffs were in accordance with what was expected of him as a police officer.
22. However, within seconds, he, as an officer accustomed to using a pistol, found himself with a long weapon, under tunnel vision, with pressure and anxiety, while taking into account, inter alia, the fact that the complainant's vehicle remained driven and that there was another person in it. All of this led to a malfunction in which a bullet was fired that hit the complainant and injured him.  In this context, the defendant further argues that operational activity, in and of itself, constitutes fertile ground for mishaps of one kind or another.
23. The defendant refers to the relevant social values and argues that the very activity, the holding of the weapon, the alertness required of the policeman, and his constant preparation for the pursuit of contact - all of these are intended to promote positive and essential social values for the maintenance of public peace and security.
24. The defendant argues that the failure occurred in the circumstances of operational activity in respect of which the case law determined that the margin of error that should be granted to the security forces in such circumstances is very wide. In this situation, the defendant is of the opinion that to the extent that a concrete social value is harmed, the harm is not at the highest level.
25. According to the defendant, the maximum mental element that can be attributed to him, taking into account the statutory provision attributed to him in the indictment, is negligence. In this context, the defendant further argues that negligence offenses are offenses of lack of foresight, offenses that occur in circumstances in which the perpetrator deviated from the reasonable standard of conduct of that official in his shoes.  This is done without intention and without recklessness.  The defendant further emphasizes that this is not violence for its own sake, and that the damage is not one of the elements of the offense attributed to him.
26. The defendant further argues that without minimizing the de facto damage caused by the commission of the offense, in his opinion the injury was not of a high standard, and to the best of his understanding, the complainant was discharged from the hospital within a short period of time, without the need for surgical or invasive intervention of any kind. The defendant emphasizes that the investigative material in this matter included only the affidavit of the victim of the offense, which is not backed up by sufficient references.
27. The defendant reiterates that the negligence accompanied an enforcement action that was lawfully carried out and was professional and bound by reality, and adds that if it were not for the suspicious conduct that he saw before his eyes, he would not have sought contact and the incident would never have occurred. His conduct, up to the time of the shooting, was not only permissible, but also mandatory by virtue of his position.
28. According to the defendant, he should be placed at the bottom of the appropriate punishment area and should even be deviated from the punishment.
29. The defendant clarifies that he confessed to an act that constitutes a criminal offense, even though it is a difficult decision, as far as he is concerned, as someone who maintains a normative lifestyle that is not characterized by criminal patterns. This is all the more reinforced in light of the fact that he is a police officer, with a role whose daily experience is to benefit others and protect them by enforcing norms and preventing their violation.
30. The defendant claims that his introspection, his willingness and his ability to look at his conduct and analyze it, in retrospect, in a critical manner, are extraordinary.
31. The defendant refers to his personal circumstances as detailed at length in the Probation Service report - that he is 38 years old, married and the father of two daughters. The defendant also refers to the fact that he is a soldier and officer "in blood", a descendant of a family of soldiers serving in the security forces, with 20 years of experience in public service, with service in the police being his whole world.
32. In this context, the defendant notes that he is a candidate for the rank of deputy commissioner, but his promotion is suspended while the proceedings in question are pending.
33. The defendant refers to the probation service reports and claims that the final report is a "guiding light for us" and it shows the leap he made while enlisting in institutional treatment within the framework of the police. The defendant further notes that a great effort was made on his part in order to promote a process of restorative justice, but the complaining party did not allow the meeting.
34. The defendant refers to the recommendation of the Probation Service to end the proceeding without a conviction and argues, with reference to the accuser's argument, that rehabilitation should not be complete rehabilitation and that a real chance of rehabilitation can also suffice. In light of the above, the defendant petitions that his case be concluded without a conviction and refers to the fact that in case law the approach was adopted according to which a conviction is not a punishment and therefore it is not part of the set of guiding considerations in determining the appropriate punishment.
35. According to the defendant, the case law shows that it is possible to avoid a conviction for an offense under section 338(a)(5) of the law without harming other interests and social values excessively.
36. The defendant further argues that the case law is well aware of the actual damages associated with a conviction in the case of police officers, let alone officers. In this context, the defendant further refers to section 5 of the MATAR Ordinance "Taking administrative measures against a police officer involved in the commission of an offense" and argues that a de facto conviction carries great weight within the framework of the administrative discretion exercised in deciding whether to take measures against a police officer or not.  The defendant further points out that in accordance with the procedure, if it is decided not to fire a police officer who has been sentenced to a prison sentence or suspended imprisonment, the approval of the police commissioner is required.  The defendant further refers to the Ministry of National Security's procedure regarding the promotion of officers, according to which any conviction for a criminal offense is taken into account in the framework of motions and placement hearings.
37. In his last sentencing statement, the defendant said, among other things, that: "On the recommendation of my lawyer and in general, I looked deeply into the incident. I went out for long meetings that at first may have felt like some kind of ego offense to me...  But I did it proudly in order to understand the mistakes I made along the way.  I took full responsibility for the incident.  I am sorry that the complainant was hurt in this way, it should have ended differently."
38. Discussion:
39. The guiding principle in sentencing is the existence of an appropriate relationship between the severity of the offense in its circumstances and the degree of guilt of the defendant and the type and degree of punishment imposed on him. In order to pass the sentence, an appropriate punishment range must be determined taking into account the social value harmed by the commission of the offense, the degree of harm to it, the customary sentencing policy, and the circumstances related to the commission of the offense.  The defendant's sentence will be handed down within the confines taking into account circumstances unrelated to the commission of the offense, but the court may exceptionally deviate from the appropriate punishment range for rehabilitation considerations or more severe for reasons of protection of public safety.
40. On the agenda is the defendant's petition to end the proceeding without a conviction, which will also be discussed below.

The appropriate penalty range in the circumstances of the case

40. The defendant was charged with an offense under section 338(a)(5) of the Penal Law, which reads:

338(a)   Whoever commits one of the following in a hasty or negligent manner that endangers human life or causes injury shall be sentenced to three years' imprisonment: