The Doctor and His Deed: The Crux Is the Sentencing

Dr. Yaakov Sarov, after the court upheld his appeal against a 15-month jail term, should be allowed to return to his difficult and responsible work at Ichilov's emergency ward.

The Tel Aviv District Court last week took a highly unusual step when it upheld an appeal by Dr. Yaakov Sarov against a 15-month jail term imposed by a magistrate's court after he was convicted of taking a bribe. The higher court drastically cut the sentence to six months of community service.

This rare and appropriate measure has put the spotlight on sentencing, which is generally considered less complex than deciding whether to convict or acquit. In the absence of binding rules or even guidelines for determining penalties, apart from the laws on maximum sentences, it is customary not to regard sentencing as worthy of attention beyond the public sensitivity that surrounds it. But actually, setting punishment raises questions that are no less grave than determining guilt or innocence.

Situations can arise in which courts recognize what can nearly be termed "limits" to criminal responsibility as a basis for leniency in sentencing, sometimes even without being acknowledged explicitly. This was recently clarified by Prof. Hadar Aviram in her article in a book in memory of the defense counsel David Wiener. It is in this context that the sentencing in the Sarov case must be seen.

The district court rejected the appeal against the conviction as well as the defense's claim that Sarov, head of the emergency ward at Tel Aviv's Ichilov Hospital, acted out of "necessity" and was in "a state of paralytic fear" when he took money from an emissary of the criminal Yosef Abutbul because of worries about possible harm if he refused. However, the court reduced his sentence significantly after it determined that he had not acted out of greed and that the person paying the bribe in exchange for preferential treatment was known to be "a criminal who knows no red lines."

The court did not recognize fear as grounds for negating criminal responsibility in taking a bribe, but did find that it was justified in fixing the sentence to take into account that "fear had perhaps arisen." Thus the judges acknowledged "virtual necessity" as grounds for leniency in sentencing.

The reasoned judgment written by District Court President Devorah Berliner on the sentence, not something that is often analyzed properly, is a work of craftsmanship that gives the issue all due respect. She correctly emphasizes that along with the nature of the crime, which is severe in itself, and the identity of the criminal, this case had no element of exploitation of patients for personal enrichment. Also, the circumstances surrounding the offense were particularly and exceptionally telling.

The judge's analysis, while overcoming the courts' natural tendency not to interfere in sentencing on appeal, led her to the natural conclusion that this was not a case of venality. Instead, special circumstances were at play in which severe distress was the lot of the doctor, not the person bribing him.

Sarov was defined by many character witnesses - his patients - as being "wed" to the emergency ward. Judge Berliner made sure to write in her judgment that working in the municipal hospital was "apparently" now a thing of the past for Sarov. Her use of the word "apparently" hints that the door has not necessarily closed on his work at the hospital, and the judgment as a whole, which refrained from attaching moral turpitude to his actions, could serve as a message to the health and justice ministries as well as the Tel Aviv municipality. They should not prevent him from returning to his difficult and responsible work at Ichilov's emergency ward. The judgment can be interpreted as the foundation that will let Sarov go back to his job.