Case Number

CrimA 746/14

Date Decided

5-31-2016

Decision Type

Appellate

Document Type

Full Opinion

Abstract

This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This is an appeal on a verdict, and alternatively, on the severity of the sentence. The background: On the evening of the fatal event, the Decedent and the Appellant met by chance. The Decedent demanded that the Appellant pay him NIS 1000. Later, the Decedent took the Appellant to a dark parking lot, threatened to beat him if he did not pay the said sum within a day or two, and then opened the zipper of his pants and exposed his penis in order to urinate, standing with his back to the Appellant. The Appellant then strangled the Decedent. He then struck him with a rock and caused his death. There is no dispute that in the weeks preceding the night of the fatal event, the Appellant was sexually abused and sodomized twice by the Decedent, and was the victim of extortion at the hands of the Decedent. The District Court convicted the Appellant of the offense of “premeditated” murder under circumstances that justified the imposition of a reduced penalty under sec. 300A(c) of the Penal Law. Consequently, the Appellant was sentenced to a custodial sentence of 20 years, and a conditional sentence. The Appellant argues that he should be exempted from criminal responsibility because he acted in “self-defense” at the time that he killed the Decedent, and alternatively, by virtue of the defense of “putative self-defense”. As an additional alternative, it was argued that the actions of the Appellant were carried out in the face of provocation, or at least cumulative provocation, and therefore the Appellant should be acquitted of the offense of murder of which he was convicted, and convicted instead of the offense of manslaughter.

The Supreme Court (per Justice H. Melcer, Justices U. Shoham and D. Barak-Erez concurring) ruled:

The Appellant will be acquitted of the crime of murder and convicted, instead, of the crime of manslaughter. Consequently, the term of imprisonment to which the Appellant was sentenced will be reduced to 12 years imprisonment.

First, the Court determined that there is no reason to depart from the factual findings of the trial court, except in relation to the psychological reaction of the Appellant to the acts of the Decedent prior to the killing.

Pursuant to this, the Court determined that the Appellant cannot avail himself of the defenses to criminal liability of “self-defense” or “putative self-defense”, and he bears criminal responsibility. In this context, the Court addressed the normative framework of “traditional” self-defense, determining that in the matter of the Appellant, the elements of immediacy and necessity were not present. The Court also conducted a comparison between the present case and that of the Dromi case, and ruled that this conclusion stood firm even on the assumption that leniency should be exercised in the present case in regard to the requirements of “traditional” self-defense, and that they should be compared with those relating to protection of one’s home. The Court also discussed the conditions for the defense to criminal responsibility of “putative self-defense”, and ruled that even had the situation been as perceived by the Appellant at the time of the incident, the defense of putative self-defense was not available to him, in view of the actions of the Appellant once the Decedent fell to the ground after being strangled.

At the same time, the Court was of the opinion that reasonable doubt arises in this case with respect to the component of “absence of provocation”, which constitutes part of the special mental element of the crime of “premeditated” murder.

The case law has held that a determination on the question of the existence of provocation requires meeting two cumulative criteria. The first is the criterion of subjective provocation, which examines whether the alleged provocative behavior caused the defendant to lose his self-control and to commit the fatal acts, without weighing their moral consequences. The second is the criterion of objective provocation, in the framework of which one must ask whether an “ordinary person”, had he been in the defendant’s situation, would have been liable to lose his self-control and to act in the way that the defendant acted. The burden of proof of the component of “absence of provocation” lies with the prosecution, but it has been ruled that a “lesser degree of proof” is required, and the prosecution fulfills its duty by bringing evidence of the causing of the death.

In applying the subjective criterion, the Court held that in view of the Decedent’s cruel treatment of the Appellant over a prolonged period preceding the night of the fatal event, the chain of events on the night of that event immediately prior to the act of killing attests to the existence of taunting, which is not of sufficient force in order to ground, itself, “regular provocation” (which is sometimes called “spontaneous provocation”), but is sufficient for the purpose of “cumulative provocation”.

Establishing the existence of “cumulative provocation”, which negates the mental element of “premeditation” that is required for the crime of murder, requires establishing continuous, cumulative acts of taunting on the part of the victim, and that, close to the time of the killing, an additional act of taunting (a “trigger”) occurred, and that the whole set of acts of persecution drove the defendant to lose his self-control so that he could not think and understand the serious moral consequences of his actions. This “trigger” must have independent status and force, but at the same time, its force is liable to be less than that required to ground taunting in a situation of “spontaneous provocation”. Moreover, the decision to kill must have formed in the defendant’s mind only after the “trigger” was activated, not before.

The Court was of the opinion that in the special circumstances of the particular case, in which, prior to the attack on the Decedent, he threatened the Appellant and humiliated him, and against the background of two occurrences of sexual assault in the preceding weeks, the required “trigger” occurred close to the act of killing – or at least, there is room to surmise that it did – and therefore the claim of cumulative provocation should be accepted.

A normative examination justifies recognition of the existence of cumulative provocation in the framework of the objective test, as well. In this context, the Court ruled that “subjectivization” of the test for objective provocation should be avoided, and there should be no departure, at this stage, from the criterion of the “ordinary person”. At the same time, the Court believed that the present case does not require recourse to the criterion of “the reasonable victim of a sexual offence”, for the sexual abuse that the Appellant experienced – and in this regard, the earlier acts perpetrated by the Decedent on the victim must be included – falls within the parameters of the objective test, according to the traditional criterion of the “ordinary person”. In this context, Justice Shoham summed up that the requirement of objective provocation is exhausted by the fact that it must overcome the hurdle of the “ordinary person”, given the common history and past of the killer and the victim of the crime, insofar as they are relevant to the event described in the information.

In view of this conclusion, and because the component of “absence of provocation” constitutes part of the special mental element of the offense of “premeditated” murder, the Appellant should be acquitted of the offense of murder, and convicted instead of the crime of manslaughter. As a result, and after deliberation, the Appellant’s sentence was set at 12 years imprisonment, from which the period of his detention would be deducted. This, in addition to the conditional sentence imposed by the District Court.

Justices Shoham and Barak-Erez concurred, adding some comments, in which Justice Melcer concurred.

Keywords

Criminal Law -- Murder, Criminal Law -- Self-defense, Criminal Law -- Sexual assault

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