Criminal Case 80042-12-24 Department for the Investigation of Police – Circular v. Ohad Mordechai Goldberg - part 3

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(5)        commits an act with respect to explosives or firearms in his possession, or fails to take proper precautions against the probable danger involved.

41. Although the title of the section is "acts of recklessness and negligence", the mental element of the offense attributed to the defendant is negligence (Criminal Appeal 7193/04 Yakirevich v. State of Israel (April 30, 2007) (hereinafter: "the Yakirevich case"); Criminal Appeal Sentence (Central District) 33250-12-18 Alima v.  State of Israel (April 17, 2019)); Criminal Case (Tel Aviv District) 15940-09-23 State of Israel v.  Anonymous (November 18, 2025) (hereinafter: "The Certain Case")), according to the facts of the indictment and the arguments of the parties (paragraph 11 of the facts of the indictment; p.  8, paras.  23, 26, 32, 33 of the accuser's arguments; p.  12 of s.  1, 9, 10 of the defendant's arguments).  The mental element of negligence is less severe than the mental element of recklessness (Criminal Appeal 10152/17 State of Israel v.  Khatib (May 10, 2018)).
42. The protected values in this offense are the protection of human life and bodily integrity, as well as the preservation of public safety, well-being, and health - all by preventing the creation of an unreasonable risk. This offense is one of the offenses of "putting a person in danger" and its purpose is to eradicate the improper behavior, in and of itself, of putting a person in unreasonable danger, even if the harmful result has not actually been realized, by directing behavior and creating a proper standard of caution.
43. The determination of the appropriate standard of care in the circumstances of each case is the responsibility of the court. This is a moral move that is influenced by various policy considerations, which may change according to the field in question.  "The standard of conduct is the result of a moral weighting, but at the same time it is also a function of the circumstances.  Within its framework, all the circumstances surrounding the event at the time of its occurrence are taken into account, both 'internal' circumstances - related to the characteristics of the perpetrator - and 'external' circumstances, which reflect the background and conditions in which he acted..." (Yakirevich, paragraph 55).

Circumstances of the commission of the offense

44. The starting point for examining the circumstances is that the defendant was involved in an incident that appeared to him to be a robbery, acted in response to this incident, and in the process the complainant was hit by a bullet fired from the defendant's weapon while he was handcuffing the complainant, and the defendant himself was also injured in the process.
45. This starting point is based on the facts attributed to the defendant in the indictment, additional facts agreed upon between the parties, and on the fact that had it not been for the accuser's agreement that the incident was perceived by the defendant as a robbery and that the shooting was inadvertent, it would have prosecuted him for the use of force against the complainant and for intentional injury with the weapon, and not only for negligence relating to its use.
46. After listening to the arguments of the parties and watching the videos, I determine that this was an incident that took place under exceptional circumstances, in which the defendant, who is an officer in the Israel Police with the rank of commander and serves as the commander of the anti-crime unit in the Sharon region in the Central District, was on his way to operational activity in the evening and found himself in a situation in which he saw an incident that appeared to him to be a robbery. This was about two months after the beginning of the war, when all the security forces, including the Israel Police, were on high alert, and as a result of the above, the defendant was issued a long weapon and was obliged to carry it at all times in addition to his personal weapon.
47. The sequence of events was described in the indictment, with the consent of the parties, and was reflected in the security camera footage P/15, in which the complainant's threatening behavior is clearly visible, which created the impression of a robbery incident.
48. The defendant himself was injured in the leg as a result of the shooting, and despite the aforesaid, he did not focus on his injury, but called the 100 hotline, instructed the salesman in the store to call MDA, treated the complainant with bandages that were in the store, submitted a detailed report to MDA and to the medics who arrived at the scene and to whom he transferred the complainant's treatment.
49. I accept the defense's position that a police officer is always on duty in accordance with the provision of section 15 of the Police Ordinance [New Version], 5731-1971, and that a police officer who observes such a situation must not remain indifferent (p. 10, 40 of the transcript).
50. This is not a planned event or one that was expected by the defendant, nor is it a deliberate injury to the complainant. The accuser also did not dispute that in the defendant's eyes it was a robbery incident and that he acted in response to this incident (p.  8, 40 of the transcript).
51. Within seconds, the defendant had to move from a state of calm to a state of combat, make a decision on how to act, and carry out the decision.
52. The defendant acted alone, without backup, under conditions of uncertainty, entered a place where, in his view, a robbery was taking place, while inside the store at the time there was a person who was not known whether he was armed or not, and outside the store there was another person waiting in the vehicle that was motivated, who could also be armed.
53. In this situation, the dilemma of "fight or flight" arises and becomes sharper, when the former commander of the Central District, Major General Avi Biton, said that in the same situation, there could have been policemen who would have started the vehicle and fled the scene (p. 6, 25 of the transcript).
54. In the case of the High Court of Justice 2366/05 Al-Nabari v. Chief of the IDF General Staff (August 4, 2005), it was held:

"Operational activity has a unique character and goals that distinguish it from criminal activity.  An approach that sees a closeness between the activity of the security forces and criminal activity harms the moral basis for the action of the security forces and is liable to harm their motivation to fulfill their duties faithfully.  The willingness of soldiers, commanders, and members of the security forces to fulfill their duties, to take risks, and to act for the sake of national interests, sometimes at the risk of their lives, when they are acting under conditions of pressure and uncertainty, is liable to be significantly harmed if they know that the result of the activity is liable to place them as criminal suspects.  Operational activity, it should be made clear at the outset of a discussion, is not criminal activity in its essence, even when it carries severe consequences.  It is therefore important to distinguish between non-normative behavior that violates the values protected by society to the point of a criminal offense, even if it occurs in the course of operational activity, and purely operational activity, even if it carries with it severe consequences" (ibid., at paragraph 9).

55. I will mention that, in determining that an act constitutes an offense, in circumstances in which the defendant did not have a mental element of awareness of the circumstances and the possibility of causing the result, the court must make a normative determination regarding the standard of caution expected of a police officer in the circumstances of the incident that occurred.
56. Setting such a standard of conduct is always a balance between conflicting interests and a worldview regarding the sanctity of life - but not only of the person suspected of an offense (who in our case is also the victim of the offense), but also of the sanctity of the life of the policeman and the civilians he protects.
57. On one side of the spectrum is a permissive standard for the use of weapons, in which a slight suspicion of danger by a person suspected of an offense is sufficient to justify deliberate firing in order to neutralize danger.
58. On the other side of the spectrum is a strict standard for the use of weapons, which states that a police officer is prohibited from taking out a weapon, let alone stepping on and pointing it at a suspect. This is due to the fear of a bullet emitting a fatal result.  Such a standard, which is intended to protect the life of a person suspected of an offense, may in some cases put the life of the police officer himself and the citizens he trusts with their protection at risk, if the offender chooses to use the weapon and precedes the policeman.
59. It should also be remembered that in determining the desired standard of conduct, the court must take into account that setting an excessively stringent standard is likely to discourage police officers who are afraid of determined enforcement of the law, thinking that if they make a mistake, they will be prosecuted and will be subject to punishment that will harm their dignity, liberty, workplace, and property.
60. There was no dispute between the parties that the defendant's conduct in connection with the weapon did not meet the required standard of conduct, and therefore it was agreed that his actions in this context constitute an offense of negligent use of weapons.
61. When I examine the defendant's conduct in the incident, I am of the opinion that his negligence is expressed mainly in the fact that he left his finger inside the trigger reserve and on the trigger itself while handcuffing the complainant with his left hand while holding the weapon in his right hand.
62. In this situation, a risk arises, which unfortunately has been realized, that in a tense situation and with concern for the complainant and his accomplice, who may arrive at any moment from behind, during the act of handcuffing, while the complainant is being held to the floor, while the handcuff is closed on the complainant's left hand, a movement of "blackmail", even if small, will be made with the fingers of the defendant's right hand, which will pull the trigger and cause the shooting.
63. In my opinion, there was no fault in the fact that the defendant used a long weapon, opened the barrel in order to be ready for an immediate response, pointed the weapon at the complainant and left him pointed at him until he finished handcuffing him.
64. As a retrospective wisdom, it is possible to think of other ways in which the complainant could have been dealt with, including requiring him to raise his hands, expose his shirt and pants in order to make sure he was not armed, turn around and lie on the floor, while calling for help while the defendant is standing next to him and controlling the situation from a distance.
65. As stated, I do not believe that other modes of action should be preferred as a normative determination, as long as the course of action taken by the defendant is reasonable in the circumstances in which he was subjected and taking into account the information available to him at the time, except for leaving the finger inside the trigger reserve and on the trigger itself, which is what caused the shooting that hit the complainant.
66. According to the accuser, the defendant's negligence is of a high standard, when, in her opinion, the defendant testified that he was not skilled in the use of a long weapon and therefore should have refrained from using it (p. 8, para.  33 of the transcript).
67. I cannot give weight to this argument, which was not claimed as a circumstance that establishes negligence on the part of the defendant in the facts of the indictment or the facts agreed upon between the parties. Moreover, it was agreed upon the parties that the defendant was obligated to carry the long weapon in view of the security situation at the time (p.  9, s.  12), and this was also raised from the testimony of retired Rabbi General Kobi Shabtai, who said that he obligated all the policemen to carry long weapons (p.  4, s.  8 of the transcript).
68. Even if the defendant was less skilled in the use of a long weapon than a pistol, this does not justify the determination that this lesser skill amounts to negligence, for otherwise, and in view of the fact that this is a behavioral offense that does not depend on the outcome, this means that all the policemen, most of whom are more skilled in the use of a pistol and who carried long weapons after the beginning of the war under the direction of the senior command, did so negligently, creating a risk of their own possession of such a weapon. This is a normative assertion that should not be accepted in the war situation in which the state was found at that time.
69. Some of the accuser's arguments regarding the defendant's conduct are retrospective references, which the accuser was also aware of the need to be careful of (p. 8, 39 of the transcript), in the comfort of the courtroom's air-conditioned courtroom, after some time of thought, consideration, watching videos documenting the incident from different angles, learning the versions of those involved, including the fact that although the defendant suspected that it was a robbery, in practice, the complainant had previous acquaintance with those present at the station, and one of them was his relative.
70. In this context, for example, the accuser's argument that at the time of the arrest the defendant could have placed the weapon on the floor (p. 8, s.  44 of the transcript) - is not acceptable to me.  This is in view of the circumstances in which the complainant can try to hold it or another person can surprise the defendant from behind, take the weapon and use it against him.
71. Similarly, the accuser's argument that even if it is possible to accept the conduct of the defendant who pointed the weapon at the complainant who was with his back to the defendant and stepped on him, a closed bottle would have prevented the shooting (p. 8, paragraph 47 of the transcript) is not acceptable to me.  This, given a situation in which the defendant does not know whether the complainant is armed or not, even when the complainant was standing with his back to the defendant, and the defendant should have been prepared for a possible response within a fraction of a second, when a closed bottle could be the difference between life and death.
72. In this context, and with regard to the accuser's position that it would have been better if the defendant had made use of his personal weapon in which he is skilled in use, I will mention the fact that the defendant's personal weapon of the Glock type is not equipped with a reseller at all. From the moment a bullet is stepped and inserted into the chamber, pressing the trigger will result in the firing of a bullet, and in order to neutralize it, it is necessary to remove the cartridge and discharge the weapon to remove the bullet from the chamber - an action that the accuser also did not claim that the defendant should have performed during the incident itself, while he was busy handcuffing the complainant.
73. Here, too, in the use of a short personal weapon, when it is alert and cannot be harvested, holding the finger inside the trigger reserve would create a risk, just as it happened with the long weapon.
74. In view of the above, and although I accept the accuser's position that the potential for damage is high (p. 8, s.  23), when a bullet fired can cause serious injury and even death, but in practice the damage caused, fortunately, was not great and the complainant did not require significant medical treatment, I do not believe that the degree of negligence of the defendant is at a high level and the degree of harm to the protected values is moderate.
75. Customary punishment
76. The defense referred to Criminal Appeal (Haifa) 41422-05-24 from Claims by Virtue of Various Laws v. Anonymous (September 24, 2024) regarding the acquittal of causing death by negligence of the officer accused of causing the death of the late Salomon Teke:

"The prosecution of members of the security forces and police personnel, including police officers, for acts committed during operational activity, requires special caution [HCJ 4845/17 Hamdan v.  Attorney General (October 28, 2019).  It should be noted that the same matter was later also discussed in the framework of the High Court of Justice 3090/22 Hamdan v.  Attorney General (May 29, 2023)].  The conduct of the police officer or soldier and the reasonableness of their action must be examined within the framework of the special conditions in which they operate, of pressure or emergency, which require a quick decision for which it is not possible to prepare in advance.  The conduct should not be detached from the circumstances surrounding the incident and the decision made.  The perpetrator of the shooting should be left room for error in such cases, and his behavior should not be examined under laboratory conditions [Civil Appeal 5604/94 Hamad et al.  v.  State of Israel (January 12, 1994); High Court of Justice 4308/21 Estate of the late Fares Abu Nab et al.  v.  Head of the Department for the Investigation of Police in the Ministry of Justice (April 18, 2022); High Court of Justice 3090/22, supra].  The state has a duty to provide the people in charge of the rule of law in general and the police in particular with the necessary protection so that they can carry out their duties without fear and without fear [HCJ 4845/17, supra] (emphasis added - G.G.).

77. In our case, as stated, there was no dispute between the parties that the defendant failed when he acted negligently in the use of the weapon, which ultimately led to the injury to the complainant, but it is still important to treat it with a punitive approach appropriate to the chaotic circumstances in which the incident occurred.
78. The defendant also referred to a certain matter in which the defendant was convicted, according to his confession, of an offense under 338(a)(5) of the Penal Law, in that during violent disturbances during Operation Guardian of the Walls, the defendant acted within the framework of his unit to disperse disturbances. The defendant noticed a group of people coming out of the doorway, including a 16-year-old minor, her father and brother, the defendant turned towards those present and said to them: "Come in before I give you one now"; "Go into the house".  The defendant did so, while holding a sponge rifle, moving it up and down and pointing at those present with the barrel.  In accordance with the defendant's instructions, those present entered the yard of the complainant's home.  For some unknown reason, while the complainant and her father were entering the yard of their home and were with their backs to the defendant, a sponge bullet was fired from a sponge rifle and hit the complainant's back.  As a result of the above, the complainant suffered a fracture of the d11 vertebra in the lug and a contusion in the back wall of the lung, and she suffered from difficulty sleeping, back pain and limited mobility, and required a backpack.  Immediately after the description, the defendant loaded the projectile with another sponge ball.  The court ruled that the extent of the violation of protected values was not at the high level, while referring to the fact that the offense was committed in an operational environment, against the background of disturbances of the peace and intensive operational activity, ruled that the range of punishment ranged from conditional imprisonment to 10 months imprisonment alongside an accompanying punishment, and imposed a conditional sentence on the defendant along with an undertaking and compensation in the amount of ILS 15,000.  No appeal was filed.

In my opinion, there can be no dispute that although this was an incident that took place during an operational activity, but not at a time when the defendant was under pressure or real danger, without close physical contact or during an act of taking control of a person suspected of a serious offense, and even though the weapon in his possession was less harmful, it caused severe injuries to the minor who was injured.

79. The defendant referred to a criminal case (Central District) 2073-09-16 State of Israel v. Oren (9 July 2017), in which the defendant thought that a vehicle driving in front of him had deliberately tried to take him off the road and he decided to hit him with a pistol that fired iron pellets with gas in his possession.  The defendant drove after the vehicle and fired at the rear window, causing a puncture in it.  The court set a VAT compound of up to 10 months in prison and sentenced the defendant to 3 months in prison with community service, suspended imprisonment and compensation to the complainant.  No appeal was filed.

The circumstances of this incident are also much more serious than the circumstances of the incident in our case, when the same defendant acted out of a sense of revenge, made deliberate use of the weapon when he was not in any danger, and even though it was not a standard weapon, the potential for damage from it is not negligible in view of the damage he caused to the vehicle, and even if he did not have the power to kill, could have caused significant injury to the complainant.

80. The defendant referred to criminal case (Nof HaGalil) 26049-12-20 State of Israel v. Shimon (22 December 2022), in which the defendant, a police officer who was not on duty, was convicted of an offense under 338(a)(5) of the Penal Law, by firing at a vehicle entered by a person he saw in the yard of his house while holding an unidentified object.  Two of the three occupants of the vehicle were injured in the shooting.  The court was of the opinion that there was no reason to overturn the conviction, noting that among the circumstances of the incident was the fact that one of the victims suffered a fairly serious injury and could easily have caused even more serious damage to the point of deprivation of life, when on the aforesaid side negligence at a relatively high level, since it was a shooting that was carried out in the general direction of a car in which the defendant knew that passengers were sitting, and that this was a very significant deviation from the open-fire regulations, when the defendant does not have a reasonable suspicion that the car is suspected of a dangerous crime and when the defendant did not even subjectively feel a danger to his life and did not even subjectively assess the suspicion that the passenger of the car had a weapon as high probability (paragraph 18).  The court found that the possibility of annulment of a conviction should not be ruled out in such circumstances as well, despite the fact that the acts caused real physical damage to others, but that in its opinion, this possibility should be limited to exceptional situations in which the defendant indicates a serious harm to his rehabilitation at a high standard (paragraph 20).  The court ruled that the degree of harm to protected values is moderate-low compared to the range of cases that fall within the scope of the offense of which the defendant was convicted (paragraph 38).  After reviewing the relevant case law, a range of 0 to 12 months of imprisonment was set alongside compensation, and imposed on the defendant a conditional prison sentence and compensation to the victims in the total amount of ILS 4,000.  No appeal was filed.

In my opinion, there can be no dispute that the circumstances of this incident are much more serious than the case of the defendant in question in every aspect - both the fact that the defendant there made deliberate use of shooting at a vehicle, in the sense that the vehicle was in a state of escape so that there was no danger from the vehicle or its occupants that justified the shooting, and in the sense of the severity of the injury to the complainants, one of whom was shot in the hand and the other was hit in the shoulder and required significant medical treatment.  As to the location of the defendant within the compound, it is located at the bottom of it, despite the fact that he conducted an evidentiary proceeding until the end of the judgment.  This judgment is also relevant to the matter of non-conviction that will be detailed below.

81. To these rulings, I will add reference to other rulings relevant to determining the scope of punishment as follows:
82. In Criminal Appeal 10843/07 Dahan et al.   State of Israel (9 April 2008), the appeal of two Border Police soldiers who were involved in an incident in which the weapon was aimed at another soldier in a "game" aimed at see who was faster, was rejected.  One of them had a live bullet, and while aiming at the other's head and pulling the trigger, the bullet was fired, hitting the other's head, penetrating his brain through the eye socket, causing fractures in the skull and facial bones, loss of the right eye, partial paralysis of the left leg, cognitive difficulties and memory loss.  The defendants were convicted of aggravated assault and of recklessness and negligence with a firearm after conducting evidence.  Appellant 1, who was in possession of the weapon, was sentenced to 9 months in prison.  Appellant 2, who was involved in the game, was sentenced to 5 months in prison.  It was held that within the range of possibilities of improper use of weapons, there are dangerous games of the highest level of severity.  They are done intentionally, deliberately, and are not the result of momentary negligence in the handling of weapons, which is sometimes caused by a state of lack of control or distraction.

Compared to our case, the circumstances are much more serious considering the point of a weapon at the head of another and deliberately pulling the trigger, shooting while aware of the possibility of causing injury, a conviction for the offense of aggravated assault punishable by up to 14 years in prison, after conducting evidence, when the victim suffered severe medical damage, including severe disability and paralysis for life, and a sentence of 9 months in prison.

83. The matter is further sharpened by a review of criminal case (Jerusalem District) 5195-02-24 State of Israel v. Abayev (23 January 2025), in which the defendant was convicted of manslaughter by reckless manslaughter on the basis of his confession that he removed a gun from a holster that was on the waist of another person, and in a half-turn motion in the direction of the deceased, he stepped the gun and pulled the trigger.  As a result of the pressure, a bullet was fired which hit the deceased's eye and penetrated his head.  Severe damage was caused to the deceased's brain, which led to his immediate death.  A range of 18 to 48 months in prison was set.  The defendant was sentenced to 20 months in prison, along with conditional imprisonment and compensation.  No appeal was filed.

Here, too, and in comparison to our case, there is a much more serious psychological element of awareness and frivolity, it was not an operational incident, there was no justification for removing the gun that was used by another person from the holster on our waist, there was no justification for stepping the gun and deliberately pulling the trigger.  The incident caused the most serious possible result - the death of the deceased, while in this serious incident it was determined that the lower threshold of the compound was 18 months in prison.

84. In Criminal Case (Haifa) 12816-07-22 State of Israel v. Daisy (May 1, 2024), the defendant was convicted on the basis of his confession that he and another police officer, both of them on a motorcycle, noticed the complainant driving the car, in motion, and holding a mobile phone in his hands.  They signaled him to stop, by means of a public address and flashing lights, but the complainant did not obey their instructions and began to flee.  The defendant and the policeman with him followed the vehicle, and when the vehicle reached the roundabout, the defendant got off the motorcycle, called out to the complainant to stop, the complainant stopped nearby, the defendant went to the front door window, on the right side of the vehicle, knocked on the window twice, and then the complainant started driving.  The defendant responded by pulling out his personal pistol and firing three bullets at the trunk of the vehicle, which caused damage to the vehicle.  The court ruled that the risk created by the defendant to the life of the complainant, and the other road users, was quite high, and that it was only by a miracle that the incident did not end in the loss of human life or serious injury.  It was determined that the degree of harm to protected values was moderately high.  The court ruled that this was not a shooting in criminal circumstances, but rather a reckless and negligent shooting carried out by a police officer who enforced traffic laws, who was operating in an operational framework, but who fired without any justification in circumstances of suspicion of committing a traffic offense.  It was determined that the penalty range is VAT and up to 6 months in prison with community service and compensation.  The defendant was sentenced to 60 days in prison with community service, VAT and compensation.  No appeal was filed.

The circumstances of the commission of the offense detailed above are much more serious than those in the case of the defendant, taking into account the deliberate shooting, without justification, when the complainant is not endangering the defendant, without suspicion of committing a serious offense, but against the background of a traffic offense of possession of a telephone.

85. In Criminal Case (Kfar Saba) 55770-12-22 Department for the Investigation of Police v. Kabata (22 April 2025), a defendant was convicted on the basis of his confession that he was a Border Police officer.  There was an argument between the defendant and the complainant, and shortly thereafter the defendant picked up the M-16 rifle that he was in possession of, knowing that the magazine was inside the weapon, aimed it at the complainant at a distance of about a meter from him, and at that point he cocked the weapon.  As a result, two rounds of ammunition were swept toward the chamber, got stuck and created a weapon stop.  The policewoman was frightened by the defendant's actions and pushed the weapon down.  While holding the weapon in his hands, the defendant picked up the weapon back and aimed it at the complainant again, and again the policewoman pushed him down, and again the defendant raised the weapon and aimed it at the complainant.  At this point, the policewoman pushed the weapon down hard, so that it slipped out of the defendant's hands and remained hanging on his body with the strap.  Afterwards, at the complainant's request, the defendant gave him the weapon, and the complainant took out the bullets that were stuck in it and returned them to the defendant.  The defendant returned the bullets to the place in the cartridge, asked the complainant not to report his actions, and left the post.  The court ruled that the degree of harm to protected values was moderate, given that the use of lethal weapons was in the context of a military duty, in a casual situation of argument and not in the framework of an operational activity or a place where the defendant felt a threat or danger to his life, and on the other hand, no shooting was fired and no physical or mental injury was caused.  The court took into account the fact that the defendant pointed the weapon at the complainant with a magazine inside, cocked the weapon and did so despite the intervention of the policewoman three times, as well as the fact that the defendant sought to silence the report of the incident.  A range of several months in prison for community service and up to 10 months in prison was determined.  The complainant was given 3 months of community service, VAT and compensation.  The defendant filed an appeal and retracted it in light of the court's recommendation.
86. In Criminal Case (Ramla) 16723-06-10 State of Israel v. Abu (July 3, 2013) - The defendant was convicted of recklessness and negligence with a weapon and acquitted of causing death by negligence after managing evidence, after taking part in dispersing demonstrators in the area of the Separation Barrier near the village of Ni'lin and firing live ammunition in order to deter them.  A stray bullet struck one of the demonstrators, a minor, killing him.  The court acquitted the defendant of causing the death of the minor since it was not proven at the required level that the bullet fired from the defendant's weapon hit him, but it was determined that the defendant behaved in a manner that created danger and deviated from the level of caution required of a reasonable person while endangering human life, even though it was an activity of an operational nature.  The court ruled that the circumstances were at the high level of negligence - the defendant was not in mortal danger nor was he on his command, the defendant did not receive permission to fire live ammunition, but only rubber bullets.  A range was determined between a conditional sentence on the side of a suspended sentence and a sentence of community service for several months, and he was given a six-month suspended sentence, along with 250 hours of probation.

Here too it appears that this is an offense that was committed in more serious circumstances than those in our case.  The defendant was not alone, it was not a stressful situation, the defendant was not in mortal danger and there was no justification for firing live ammunition at demonstrators.

87. Therefore, I determine that the appropriate punishment range for the offense committed by the defendant, in the circumstances of its commission, taking into account the extent of the violation of protected values and customary punishment, ranges from a conditional imprisonment alongside a probation order and compensation to the complainant, to an 8-month imprisonment that can and will serve community service.

Location inside the punishment compound

88. The accuser sought to place the defendant in the middle of the punishment compound to be determined and to impose a sentence of 7 months imprisonment in community service, where, according to her, the defendant did indeed confess to the acts but did not understand what was expected of him (p. 9, s.  13 of the transcript), the fact that the defendant conducted the proceeding, and in light of the report that shows that the defendant did not take full responsibility for his actions (p.  10, s.  7 of the transcript).
89. I do not accept this position, which is inconsistent with the accuser's statement that the defendant's rights are reserved for him (p. 8, para.  19 of the transcript).
90. In my opinion, and for the reasons that will be detailed below in relation to the non-conviction, it is appropriate to place the defendant at the bottom of the compound and examine whether in the circumstances there is room to avoid his conviction.

Non-Conviction - The Normative Framework

91. The law allows the court to refrain from convicting or annul a conviction, even though it has been determined that the defendant has committed an offense, while requiring him to perform public service, to impose a probation order, or to provide an undertaking to refrain from an offense.
92. The law does not prescribe the conditions for avoiding or annulling a conviction, and therefore this question is left to the court's broad discretion.
93. The precedent in this matter was ruled in a written ruling , in which it was held that avoidance of a conviction is possible in the aggregate of two factors: first, the conviction must seriously harm the defendant's rehabilitation; second, the type of offense makes it possible to waive, in the circumstances of the particular case, the conviction without materially harming the other sentencing considerations. Hence, the essence of the offense, the need to deter the public, for offenses whose victim is not the individual but the entire public - even the condemnation of the offense, together with the most uniform sentencing policy possible on the basis of these considerations - all of these serve as factors that are liable to override even the rehabilitation of the accused.
94. The written ruling held that the termination of the proceeding without a conviction is an exception to the rule, since once it is proven that an offense has been committed, the defendant must be convicted and this measure should be imposed only in exceptional cases, where there is no reasonable relationship between the damage expected of the defendant from the conviction and the severity of the offense. The Honorable Judge Levin enumerated and even adopted 9 tests that the Probation Service and rehabilitation considerations detailed below: whether the offense was the defendant's first or only offense; what was the severity of the offense and the circumstances in which it was committed; the status and role of the defendant and the connection between the offense and status and position; the degree of harm the offense did to others; the likelihood that the defendant would commit additional offenses; whether the defendant's commission of the offense reflects a pattern of chronic behavior, or is it accidental behavior; the defendant's attitude toward the offense, whether he assumes responsibility for committing it, whether he regrets it; the significance of the conviction on the defendant's self-image; and the effect of the conviction on the defendant's areas of activity.
95. In a later ruling, it was determined that where a person has been proven guilty of a criminal offense, he must be convicted by law. This rule is enshrined in section 182 of the Criminal Procedure Law, which states that "at the end of the investigation of the guilt, the court shall decide [...] to acquit the accused or, if found guilty, to convict him." The conviction of a person who has committed a criminal offense is a natural link derived from the proof of criminal guilt, it "realizes the purpose of the criminal proceeding, and completes its various stages; It realizes the value of equality between defendants in criminal proceedings, and prevents discrimination in the way it is applied" (Criminal Appeal 9893/06 Laufer v.  State of Israel (December 31, 2007)).
96. In this judgment, the Supreme Court reiterated its determination that "in the case of adult defendants, in the aforementioned balance of considerations, the public consideration usually prevails, and only in the most special, exceptional and exceptional circumstances, will a deviation from the duty to be brought to justice by way of convicting the offender will be justified, and this, for the most part, when an unreasonable relationship may arise between the damage expected from a conviction and the severity of the offense and the damage expected to the offender from the conviction" (Criminal Appeal 2669/00 State of Israel v. Anonymous (2000)).
97. It was further determined that the conviction was intended "to convey a message of deterrence of the individual and the many, and to give the offense a label of an improper act in the eyes of society, which is punitive. A society that seeks to operate the criminal proceeding in an effective, egalitarian and fair manner will find it difficult to accept a judicial approach that exempts defendants, frequently, from a criminal conviction, even though their criminal responsibility has been proven.  After all, the conviction is the judicial expression of the criminal responsibility that has been proven, and without it, the determination of criminal liability remains missing the last link, which adds to it the required normative legal significance" (Criminal Appeal 5102/03 State of Israel v.  Klein (September 4, 2007)).
98. The two cumulative conditions do not exist in isolation from each other, and there is a "parallelism of forces" between them between the requirement to prove the existence of a concrete injury and the severity of the offenses. The more serious the offense, the more concrete, clear and tangible the infringement is required, and the lighter the offense, the less severe the offense can be satisfied with (see, in this context, Criminal Appeal (Central District) 24457-03-15 Guterman v.  State of Israel (August 30, 2015)).
99. The accuser is of the opinion that the defendant does not meet either of the two conditions set out in the written rule for the conclusion of the proceeding by non-conviction, while emphasizing that the complainant did not commit a criminal offense and that the defendant did not undergo a rehabilitative process or that there is concrete damage (p. 9, s.  38 of the transcript).  Referring to the procedure submitted by the defendant as evidence of punishment, which in her opinion emphasizes that there is no concrete harm to the defendant if he is convicted (p.  9, s.  46 of the transcript), she referred to the appeal petition/administrative action 7000/19 Anonymous v.  State of Israel (May 12, 2021), in which it was determined that the dismissal of a police officer is an administrative measure and the discretion is vested in the Authority.  Referred to the judgment presented by the defense in criminal case 47022-07-24 State of Israel v.  Suissa (January 22, 2026) (hereinafter: "the Suissa case"), which in its opinion is completely different from the defendant's case - although there too it insisted that the defendant should be convicted - and also referred to a judgment in a certain case, which in its opinion is much more serious than the defendant's case.
100. The defendant referred to judgments regarding the weight and significance of a conviction in the case of police officers: Criminal Case (Central District) State of Israel v. Vernitzky (September 11, 2017); Criminal Appeal (Tel Aviv District) 71092/04 Atbarian v.  Claims by Virtue of Various Laws (June 30, 2006); Suissa Case; Criminal Case (Jerusalem) 46898-09-17 Claims by Virtue of Various Laws v.  Khalil (April 8, 2017); Criminal Case (Beersheba) 48193-12-13 State of Israel v.  Samimi (24.11.14).
101. The defendant referred to judgments in which the court refrained from convicting police officers for various offenses: Criminal Case (Jerusalem) 13410-08-24 Claims by Various Laws v. Sofer (February 22, 2026); Criminal Case (Rishon LeZion) 70314-11-20 Claims by Various Laws v.  Guetta (July 19, 2023); Criminal Case (Jerusalem) 33860-10-21 State of Israel v.  Ohayon (December 10, 2023); Criminal Case (Jerusalem) 49186-12-20 State of Israel v.  Nisanov (May 2, 2022); Criminal Case (Jerusalem) 24062-09-18 from Claims by Virtue of Various Laws v.  Araida et al.  (December 15, 2019); Criminal Case (2019) 17451-12-17 from Claims by Virtue of Various Laws v.  Levy (December 23, 2018); Criminal Case (Tel Aviv) 36263-03-17 State of Israel v.  Shalem (June 6, 2018); Criminal Case (Jerusalem) 1185-09-16 Claims by Various Laws v.  Nissim (September 25, 2017); Criminal Case (Jerusalem) 26189-08-16 State of Israel v.  Luciano (July 6, 2017); Criminal Case (Haifa) from Claims by Virtue of Various Laws v.  Vaknin 36819-02-11 (November 1, 2011).
102. The defendant referred to a case law in which the court refrained from convicting police officers and civilians of an offense under section 338(a)(5), including:

Criminal Appeal (District Court) 47763-06-19 Muhammad Nasra v.  State of Israel (September 23, 2019), in which the District Court accepted the defendant's appeal and ordered the conviction to be annulled, along with leaving a sentence of 80 hours and probation for 18 months.  The defendant was convicted on the basis of his confession that he had driven with his friend to a gas station armed with his M16 police rifle.  While the defendant and his friend were at the gas station, they heard that a fight had broken out in Kafr Manda.  Later, the appellant sent his friend to bring his weapon in his hands, went to the back of the gas station, near the olive grove, and fired nine bullets in the air.  The Court of Appeal referred to the position of the defendant's commanders as expressed in the letters they submitted regarding his performance in the army, the fact that he was a young man, with no convictions, and the effect of his conviction on the continuation of his military service, even though the General Staff Ordinance states that only a person who has been convicted of an offense involving disgrace or sentenced to actual imprisonment will not be accepted for permanent service and that each case is considered on its own merits, and that even if the conviction is overturned, it will not be bound by the discretion of the person in charge, but at the same time it is clear that the revocation of the conviction will substantially assist in the rehabilitation of the accused.  The Court of Appeal also ruled that the second condition is fulfilled given that it is a single, momentary and one-time event.  The acts were not done with the aim of harming a person or property, and in practice no damage was caused despite the potential damage inherent in the act, and it is not at the highest level.