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Law

Penal Law, 5737-1977

חוק העונשין

Chapter V2: Miscellaneous Provisions

Interpretation

34ka.

[Amendment: 1994-3]

If a law is open to several reasonable interpretations according to its purpose, the matter shall be decided in accordance with the interpretation most lenient to the person who is to bear criminal liability under that law.

Effect of Doubt

34kb.

[Amendment: 1994-3]

(a)A person shall not bear criminal liability for an offense unless it has been proved beyond a reasonable doubt.

(b)If a reasonable doubt arises as to whether a defense to criminal liability exists, and the doubt has not been removed, the defense shall apply.

Generality

34kc.

In the absence of a contrary provision in the law, the provisions of the Preliminary Part and the General Part shall also apply to offenses not under this Law.

Definitions

34kd.

[Amendment: [1939], [5717], [5735], 5748-3, 5754-3, 5755-4, 5756-6, 5758-2|other=[a/5]]

For the purpose of an offense –

"dwelling house" – a building or structure, or any part thereof, in the possession of its owner or occupier for the purpose of residence, for himself, his family, or his employee, even if at times no one resides therein; and for this purpose, a building or structure adjacent to it, or occupied together with it, or serving a particular purpose thereof, shall also be regarded as part of the dwelling house, provided there is a connection between them, whether contiguous or by way of an enclosed and covered passage leading from one to the other;

"owner" and similar terms, in relation to property – including a corporation, an association of persons capable of owning property, and the State;

"public way" – a road, market, square, street, bridge, and any way through which the public lawfully passes;

"possession" – a person's control over a thing in his own possession, in the possession of another, or in any place whatsoever, whether or not that place belongs to him; and a thing in the possession or control of one or more members of a group with the knowledge and consent of the rest shall be deemed to be in the possession and control of each and all of them;

"judicial proceeding" – any proceeding before a court, tribunal, judicial authority, commission of inquiry, or any person empowered to administer oaths to witnesses;

"bodily harm" – pain, disease, or physical impairment, whether permanent or transient;

"grievous bodily harm" – bodily harm amounting to dangerous harm, or harm that seriously or permanently injures or is likely to injure the health or comfort of the person harmed, or that amounts to permanent disfigurement, or permanent injury, or serious injury to any organ, membrane, or external or internal sense;

"dangerous harm" – bodily harm that endangers life;

"computer material", "computer" – as defined in the Computer Law, 5755–1995;

"law" – including an Act of the British Parliament or an Order in Council, or any part thereof, or regulations made thereunder, as in force in the State;

"knowledge", in relation to any expression denoting supply or use – knowledge of the nature of the thing supplied or used;

"money" – including a banknote, bank draft, cheque, and any other instrument for the payment of money;

"night" – from 18:30 until 06:30;

"public place" – a road, building, place, or means of transport to which the public has, at the relevant time, a right or permission of access, whether unconditionally or subject to payment, and any building or place used at that time for public or religious assembly or as a court sitting in public;

"supply", of a thing – including using or doing with it, attempting to use or do with it, or attempting to induce a person to use, do with, or act upon it;

"security" – including a document evidencing a right or a claim to property;

"property" – animate or inanimate, capable of being the subject of ownership;

"public servant" –

(1)a State employee, including a soldier within the meaning of the Military Justice Law, 5715–1955;

(2)an employee of a local authority or local education authority;

(3)an employee of a religious council;

(4)an employee of the National Insurance Institute;

(5)an employee of the Bank of Israel;

(6)an employee of the World Zionist Organization, the Jewish Agency for the Land of Israel, the Jewish National Fund, the Keren Hayesod – United Israel Appeal, including a member of the council or directorate of these institutions;

(7)an employee of the Employment Service Bureau;

(8)an employee of an enterprise, institution, fund, or other body in the management of which the Government participates, including a member of the council or directorate of such bodies;

(9)an arbitrator;

(10)a holder of an office or position by virtue of legislation, whether by appointment, election, or agreement, even if not among the public servants listed in paragraphs (1) to (9);

(11)a director on behalf of the State in a government company, a government subsidiary company, or a mixed company, within the meaning of the Government Companies Law, 5735–1975, as well as an employee of such a company or a person employed in its service;

"public", in relation to an act –

(1)a public place, where a person can see the act from any place;

(2)a place that is not a public place, provided that a person present in a public place can see the act;

"wound" – a cut or stab that severs or pierces any external membrane of the body, and for this purpose an external membrane is any membrane that can be touched without severing or piercing any membrane;

"publication" – a writing, printed matter, computer material, or any other visual display, as well as any auditory means capable of conveying words or ideas, whether alone or with the aid of any instrument;

"published" –

(1)in relation to spoken words – to utter words orally or by other means, at a public gathering or in a public place, or in such a manner that persons present in a public place can hear them, or to broadcast them on radio or television available to the public, or to disseminate them by computer in a manner accessible to the public, or to make them available to the public by means of a computer;

(2)in relation to a publication that is not spoken words – to distribute it among persons or to display it in such a manner that persons in a public place can see it, or to sell or offer it for sale in any place, or to disseminate it by television broadcasts available to the public, or to disseminate it to the public by computer in a manner accessible to the public, or to make it available to the public by means of a computer;

"public" – including any part thereof likely to be affected by the conduct referred to in the context of this term;

"minor" – a person who has not yet reached the age of 18 years.

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Chapter VI: Methods of Punishment

Section A: General

Penalties Are Maximum Penalties

35.

[Amendment: 5748-3|after=[XI/1]]

(a)A court that has convicted a person of an offense may impose upon that person any penalty that does not exceed the penalty prescribed by law for that offense.

(b)Where the penalty is a fine or compensation pursuant to Section 77, the court shall be entitled to set it at an amount not exceeding its updated rate on the day of the court's decision, and if an Appeal has been filed — a fine or compensation not exceeding its updated rate on the day of the decision on Appeal; for this purpose, "updated rate" means the rate of the fine that was prescribed by law for the offense on the day of its commission as amended by an Order made under Section 64, and in the case of compensation pursuant to Section 77, the rate of compensation that was prescribed by law on the day the offense was committed as amended by such an Order.

(c)Where the rate of the fine or compensation was amended other than as stated in subsection (b), the court shall be entitled to impose a fine or compensation at a rate not exceeding its rate on the day the offense was committed, plus linkage differentials to the index based on changes in the index published up to the day of the court's decision; in this Section, "index" means the consumer price index published by the Central Bureau of Statistics.

Mandatory Sentence and Mitigating Circumstances

35a.

[Amendment: 1994-3, 1995-4, 2019-3]

(a)Where a person has been convicted of an offence carrying a mandatory sentence, a sentence lighter than the mandatory sentence prescribed for the offence may be imposed upon him, if the offence was committed under special mitigating circumstances that shall be specified in the sentencing judgment.

(b)The provisions of sub-section (a) shall not apply to the following:

(1)the offence of murder under aggravating circumstances pursuant to Section 301a;

(2)an offence under –

(a)the Nazi and Nazi Collaborators (Punishment) Law, 5710–1950;

(b)the Prevention and Punishment of the Crime of Genocide Law, 5710–1950;

(c)the Aviation Law (Offences and Jurisdiction), 5731–1971.

Imprisonment and Fine

36.

[Amendment: 5751-3|after=[XI/2]]

Where the law prescribes Imprisonment only, or prescribes Imprisonment or a Fine as alternatives, the court may impose Imprisonment or a Fine or both; however, where the law prescribes mandatory Imprisonment, the court shall not impose a Fine alone.

Investigation

37.

(a)Where a person has been convicted, the court may, before imposing sentence, require a written report from a probation officer concerning any of the following:

(1)the accused's past record;

(2)the accused's family situation, with as full particulars as possible regarding his parents, spouse, children, brothers and sisters;

(3)the accused's financial situation;

(4)the state of health of the accused and of his family members;

(5)particular personal circumstances — if any — that led him to commit the offence.

(b)In such a report, the probation officer may make a recommendation to the court as to the nature of the sentence that, in his opinion, offers a prospect of rehabilitating the accused.

(c)Where the court has imposed a sentence of imprisonment upon the accused following receipt of the report, a copy thereof shall be sent to the Commissioner of Prisons to serve as material for determining the manner of treatment of the prisoner.

(d)The contention that the report submitted to the court was not prepared in accordance with the provisions of this section shall not constitute grounds for an Appeal.

Mandatory Report

38.

(a)A court shall not impose a sentence of unconditional Imprisonment except after receiving a report pursuant to Section 37.

(b)The Minister of Justice may, by proclamation published in the Official Gazette, restrict, from time to time, the application of subsection (a) according to types of courts, according to offenses, according to the age of the accused, or according to any other classification.

Other Offenses Admitted by the Accused

39.

(a)A person who has been convicted of a particular offense and has requested that the court also sentence that person in respect of other offenses which that person admits to having committed, the court may — after having afforded the prosecutor an opportunity to submit arguments in that regard — convict and sentence that person, or place that person on probation, in respect of each of the other offenses.

(b)The court shall not exercise its power under this Section except in respect of offenses that are within its substantive jurisdiction and which it is competent to try in the composition in which it sits; however, a District Court may do so also in respect of misdemeanors and contraventions.

(c)Where a person has been convicted under this Section notwithstanding the prosecutor's objection, the prosecutor may appeal against such conviction.

(d)Where the court has exercised its power under this Section and, on Appeal against its Judgment, the conviction in respect of the offense with which the accused was charged is set aside, this shall not affect the conviction and sentence in respect of the other offenses.

(e)In this Section, "other offenses" means whether or not an indictment has been filed in respect thereof, provided that the particulars of the offenses have been specified to the extent necessary to identify them.

Offenses for Which No Penalty Has Been Prescribed

40.

[Amendment: 5740-4, 5742-2, [Official Gazette amendment of fine rates]|after=[XI/6]]

In respect of an offense prescribed by law prior to the 19th of Elul 5714 (17 September 1954) for which no penalty has been prescribed, the court may impose —

(1)where the offense is a misdemeanor — Imprisonment of up to three years or a Fine of up to 75,300 new shekels or both penalties;

(2)where it has not been stated that the offense is a misdemeanor — Imprisonment of up to seven days or a Fine of up to 2,800 new shekels or both penalties.

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Section A1: Structuring of Judicial Sentencing Discretion

Purpose

40a.

The purpose of this Division is to establish the guiding principles and considerations in sentencing, the weight to be accorded to them and the relationship between them, so that the court may determine the appropriate punishment for the accused in the circumstances of the offense.

The Guiding Principle in Sentencing – Proportionality

40b.

[Amendment: 5772]

The guiding principle in sentencing is the existence of a proportionate relationship between the gravity of the offense and its circumstances and the degree of the accused's culpability, on the one hand, and the type and measure of the punishment imposed upon the accused, on the other (in this Division – the guiding principle).

Determining the Proportionate Sentencing Range and Imposing the Accused's Sentence

40c.

[Amendment: 5772]

(a)The court shall determine a proportionate sentencing range for the offense committed by the accused in accordance with the guiding principle, and for that purpose shall take into account the social value harmed by commission of the offense, the extent of the harm to that value, prevailing sentencing policy, and the circumstances connected to the commission of the offense as set out in Section 40i.

(b)Within the proportionate sentencing range, the court shall impose the appropriate punishment on the accused, taking into account circumstances not connected to the commission of the offense as set out in Section 40ya; however, the court may depart from the proportionate sentencing range on grounds of rehabilitation or protection of public safety pursuant to the provisions of Sections 40d and 40e.

Rehabilitation

40d.

[Amendment: 5772]

(a)Where the court has determined the proportionate sentencing range in accordance with the guiding principle and has found that the accused has been rehabilitated or that there is a real prospect that the accused will be rehabilitated, the court may depart from the proportionate sentencing range and determine the accused's punishment according to rehabilitation considerations, and may also order the application of rehabilitative measures in respect of the accused, including placing the accused on probation pursuant to Sections 82 or 86 or pursuant to the Probation of Offenders Ordinance [New Version], 5729–1969.

(b)Where the offense and the degree of the accused's culpability are of particular gravity, the court shall not depart from the proportionate sentencing range as referred to in subsection (a), even if the accused has been rehabilitated or there is a real prospect that the accused will be rehabilitated, except in special and exceptional circumstances, after the court has been satisfied that those circumstances outweigh the need to determine the punishment within the proportionate sentencing range in accordance with the guiding principle, and has set this out in detail in the sentencing judgment.

Protection of Public Safety

40e.

[Amendment: 5772]

Where the court has determined the proportionate sentencing range in accordance with the guiding principle and has found that there is a genuine concern that the accused will reoffend, and that an enhanced punishment and removal of the accused from the public are necessary in order to protect public safety, the court may depart from the proportionate sentencing range, provided that the punishment determined shall not constitute a marked aggravation beyond the proportionate sentencing range; the court shall not make such a determination unless it has found that the accused has a significant criminal record or unless a professional opinion has been presented to it.

Individual Deterrence

40f.

[Amendment: 5772]

Where the court has found that there is a need to deter the accused from committing a further offense, and that there is a real prospect that the imposition of a particular punishment will bring about such deterrence, the court may take this consideration into account when determining the accused's punishment, provided that the punishment does not exceed the proportionate sentencing range.

General Deterrence

40g.

[Amendment: 5772]

Where the court has found that there is a need to deter the public from committing an offense of the type committed by the accused, and that there is a real prospect that an enhanced punishment for the accused will bring about general deterrence, the court may take this consideration into account when determining the accused's punishment, provided that the punishment does not exceed the proportionate sentencing range.

Fine

40h.

[Amendment: 5772]

Where the court has determined that the proportionate sentencing range includes a fine, the court shall take into account, in addition to what is stated in Section 40g(a), the accused's financial circumstances, for the purpose of determining the proportionate fine sentencing range.

Circumstances Related to Commission of the Offense

40i.

[Amendment: 5772]

(a)In determining the appropriate sentencing range for the offense committed by the defendant as set out in Section 40c(a), the court shall take into account the existence of circumstances related to the commission of the offense as listed below, and the degree to which they were present, insofar as it considers them to affect the gravity of the offense and the culpability of the defendant:

(1)the planning that preceded the commission of the offense;

(2)the defendant's relative role in the commission of the offense and the degree of another person's influence on the defendant in committing the offense;

(3)the harm that was foreseeable from the commission of the offense;

(4)the harm caused by the commission of the offense;

(5)the reasons that led the defendant to commit the offense;

(6)the defendant's capacity to understand what he was doing, the wrongfulness of his act, or the significance of his act, including by reason of his age;

(7)the defendant's ability to refrain from the act and the degree of his control over his conduct, including due to provocation by the victim of the offense;

(8)the defendant's psychological distress resulting from abuse inflicted upon him by the victim of the offense;

(9)proximity to a defense to criminal liability as set out in Division B of Chapter E1;

(10)the cruelty, violence, and abuse by the defendant toward the victim of the offense or the exploitation of the victim;

(11)the abuse of the defendant's power, status, or relationship with the victim of the offense.

(b)With respect to circumstances referred to in subsection (a)(6) through (9), the court shall take them into account insofar as it considers them to diminish the gravity of the offense and the culpability of the defendant; and with respect to circumstances referred to in subsection (a)(10) and (11) — insofar as it considers them to increase the gravity of the offense and the culpability of the defendant.

Proof of Circumstances Related to Commission of the Offense

40j.

[Amendment: 5772]

(a)The court shall determine that circumstances related to the commission of the offense exist on the basis of evidence adduced at the guilt determination stage.

(b)Notwithstanding the provisions of subsection (a) —

(1)at the sentencing submissions stage, the defendant is entitled to adduce evidence on his behalf, provided that it does not contradict what was asserted by him at the guilt determination stage, and the parties are entitled to adduce evidence that is prescribed by legislation to be adduced at that stage;

(2)the court may, upon the application of one of the parties, permit the adducing of evidence regarding circumstances related to the commission of the offense at the sentencing submissions stage, if it is satisfied that there was no possibility of raising them at the guilt determination stage or if this is required in order to prevent a miscarriage of justice.

(c)The court shall determine that an aggravating circumstance related to the commission of the offense existed if it has been proven beyond a reasonable doubt; the court shall determine that a mitigating circumstance related to the commission of the offense existed if it has been proven to the standard of proof required in civil proceedings.

(d)Without derogating from the provisions of subsection (b)(2), where the defendant has admitted to the facts of the indictment, whether after hearing evidence or before doing so, the indictment to which he admitted shall include all facts and circumstances related to the commission of the offense.

Circumstances Not Connected to Commission of the Offense

40ja.

[Amendment: 5772]

In imposing the appropriate punishment on the accused as referred to in Section 40g(b), the court may take into account the existence of circumstances not connected to the commission of the offense, as set out below, and the extent to which they exist, insofar as the court considers it appropriate to give them weight in the circumstances of the case, provided that the punishment does not exceed the proportionate sentencing range:

(1)the impact of the punishment on the accused, including on account of age;

(2)the impact of the punishment on the accused's family;

(3)the harm caused to the accused as a result of the commission of the offense and of the conviction;

(4)the accused's assumption of responsibility for the accused's actions, and the accused's rehabilitation or efforts to rehabilitate;

(5)the accused's efforts to remedy the consequences of the offense and to compensate for the harm caused thereby;

(6)the accused's cooperation with law enforcement authorities; however, denial of guilt and conducting a trial by the accused shall not be held against the accused;

(7)the accused's positive conduct and contribution to society;

(8)difficult life circumstances of the accused that had an influence on the commission of the offense;

(9)the conduct of law enforcement authorities;

(10)the passage of time since the commission of the offense;

(11)the accused's criminal record or the absence thereof.

Additional Circumstances

40jb.

[Amendment: 5772]

Nothing in the provisions of Sections 40i and 40ya shall derogate from the court's authority to consider additional circumstances connected to the commission of the offense for the purpose of determining the proportionate sentencing range, as well as additional circumstances not connected to the commission of the offense for the purpose of imposing the appropriate punishment on the accused.

Multiple Offenses

40jc.

[Amendment: 5772]

(a)Where the court has convicted an accused of several offenses constituting a single incident, it shall determine a proportionate sentencing range as referred to in Section 40g(a) for the entire incident, and shall impose a cumulative punishment for all offenses arising from that incident.

(b)Where the court has convicted an accused of several offenses constituting several incidents, it shall determine a proportionate sentencing range as referred to in Section 40g(a) for each incident separately, and may thereafter impose a separate punishment for each incident or a cumulative punishment for all incidents; where the court imposes a separate punishment for each incident, it shall determine the extent to which the punishments overlap or are cumulative.

(c)In imposing punishment pursuant to this Section, the court shall take into account, inter alia, the number of offenses, their frequency and the connection between them, and shall maintain a proportionate relationship between the gravity of the totality of the acts and the degree of the accused's culpability, on the one hand, and the type of punishment, and where the court has imposed a sentence of imprisonment – the period of imprisonment that the accused must serve, on the other.

Duty to Give Reasons

40jd.

[Amendment: 5772]

The court shall set out and provide reasons in the sentencing judgment for, inter alia, the following:

(1)the determination of the proportionate sentencing range in accordance with the guiding principle and the circumstances connected to the commission of the offense that were taken into account for the purpose of determining the proportionate sentencing range;

(2)the imposition of the appropriate punishment on the accused and the circumstances not connected to the commission of the offense that were taken into account for the purpose of imposing the punishment;

(3)any departure from the proportionate sentencing range for the purpose of the accused's rehabilitation or for the purpose of protecting public safety, where such departure occurred, and the reasons for the departure;

(4)the manner in which the accused's sentence was imposed following conviction for several offenses constituting several incidents.

Sentencing of a Minor

40if.

[Amendment: 5772]

(a)The sentencing of a minor shall be governed by the provisions of the Youth (Adjudication, Punishment and Methods of Treatment) Law, 5731–1971.

(b)Without derogating from the provisions of subsection (a), the court may take into account the guiding principles and considerations in sentencing enumerated in this Division, adapted as appropriate to the sentencing of a minor, insofar as the court considers it appropriate to give them weight in the circumstances of the case.

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