Birdish (Appellant) v SD (Respondent) 2025 SDCR 6

Birdish (Appellant) v State of SimDemocracy (Respondent) [2025] SDCR 6

Date	15th October 2025
Judges	Judge ppatpat Judge Terak Judge Confused
Held	The Sentence of Contempt of Court for the appellant in SD v Dragoncrxst [2025] Crim 138 was illegal.
Ruling	3-0
Applicable precedent	To determine proportionality a 4 step test is applied (Legitimate Purpose, Suitability, Necessity, Appropriateness), If a Judge does not determine there is reasonable cause not to apply the Sentencing Act, not taking into account mitigating factors renders the verdict illegal

MAJORITY OPINION by Judge ppatpat

(with Judge Terak and Judge Confused agreeing)

Introduction

[1] This is an appeal against a sentence of a one (1) week mute imposed for contempt in the face of the court during the pre-trial of SD v Dragoncrxst [2025] Crim 138. The question is whether the sentence should stand, be quashed, or be varied.

[2] The Inferior Court found the Appellant in contempt after repeated disruptive and mocking submissions, despite warnings, and imposed the statutory maximum of one week’s mute. A co-participant, Kelvin, was separately sentenced to a one-hour mute.

[3] The Appellant pled guilty during the summary contempt phase, albeit in a flippant tone. The court afforded only a few minutes for mitigation before sentencing.

Considerations

[4] The Criminal Code 2020 defines contempt of court to include acts that disrupt judicial proceedings or prejudice the administration of justice. Where contempt is committed in the face of the court, the judge may proceed summarily, must inform the person of the charge, afford an opportunity to make a defence, and then determine guilt and sentence. The available summary sentence includes a mute of up to one (1) week.

[5] The Constitution guarantees a fair hearing, including the right to adequate time to prepare a defence and private communication with counsel. It also secures liberty by permitting muting after conviction or court order, but prohibits punishments that are “grossly unproportional” to the conduct (as invoked in this record).

[6] The Sentencing Act requires judges to have regard to that Act, to explain sentencing reasoning, and to consider mitigating and aggravating factors. Mitigating factors expressly include a guilty plea. Lawfulness of using the maximum

[7] The text grants summary power to impose up to one week for contempt in facie. The Inferior Court acted within statutory bounds. There is no per se illegality in imposing the maximum.

[8] That said, a maximum penalty is not automatic. The Sentencing Act obliges a judge to articulate consideration of mitigation and aggravation in the final decision.

Parity with co-offender

[9] The Appellant argues disproportionality by comparison to Kelvin’s one-hour mute. Sentencing parity is a facet of proportionality, but like cases must truly be alike. The record shows Kelvin ceased disruption after warning; the Appellant continued and mocked the court while purporting to mitigate. The offenders were not similarly situated; differential outcomes are therefore permissible.

[9.1] Proportionality is a constitutional requirement; it is not a command of identical sentences.

Proportionality to the Appellant’s own conduct

[10] The constitutional inquiry is whether the punishment is “grossly unproportional.” A week-long mute is within the statutory range, but the gross disproportionality threshold is higher than mere disagreement. The following test shall be applied to determine if an action is proportional:

[10.1] Firstly an action needs to have a legitimate purpose. An action that goes against the law or aims to violate the law or higher statutory authority can never be proportional.

[10.2] Secondly an action needs to be suitable for the action pursued. Only an action that is actually able to achieve the legitimate purpose set can be proportional. An action that is not even fit to achieve its goal can not be proportional.

[10.3] Thirdly an action needs to be necessary. This means only that action can be proportional that is the least impactful on a person but still able to achieve the same goal. This entails that an action needs to be chosen in such a way that it imposes the least burden possible. Therein an action needs not be considered though that would lead to a lesser or worse outcome than the legitimate goal.

[10.4] Lastly an action needs to be appropriate. This means that the negative effects upon a person may not be vastly greater than the good or the legal interest in achieving the legitimate goal. This needs to be weighed on a case by case basis by the legal authority making such a decision.

[10.5] Here the upholding of the judicial proceedings is a legitimate goal. The sanction imposed is suitable to achieve that goal as a person that is muted can no longer disrupt a proceeding before a court. A mere removal of court access roles might be able to limit the effect a person can have on proceedings but it would not stop a person from disrupting the proceedings in other channels or through other means. While the removal of court access roles would have a lesser impact on the affected, it would not be equally suitable. The muting is necessary. The action is also appropriate. The legal need to uphold the trust in and the operation of the court system outweights the single persons need to participate for a short amount of time in the general discourse of SimDemocracy. As it relates to the ability of a person disrupting the proceedings directly they clearly outweigh them. Given the appellant’s sustained disruption in the face of warnings, imposing a serious sanction is not grossly out of step.

Adequacy of time for mitigation

[11] However, the Sentencing Act requires the judge to weigh and record mitigation. The Appellant did plead guilty (a statutory mitigator), even if insincerely expressed, and that factor warranted consideration on the record before fixing the maximum.

[12] The court afforded only minutes for mitigation. Even in summary contempt, the Constitution guarantees adequate time to prepare a defence and consult counsel. Where a judge accelerates mitigation to mere minutes while contemplating the statutory maximum, that timing strains the constitutional guarantee. The summary pathway permits speed, but not at the expense of the textually guaranteed adequacy of time.

[13] We therefore find a procedural deficiency in the sentencing stage. A judge may choose the statutory maximum only after doing the work the law requires. Because the judge did not take mitigation into account when imposing sentence, the error lies not merely in the length of the mute but in the method used to reach it.

Verdict

[14] The contempt conviction stands. The one-week sentence was within statutory power and is not grossly disproportionate on this record. But the sentencing process did not adequately reflect constitutional adequacy of mitigation time and the Sentencing Act’s requirement to record consideration of mitigating factors (including the guilty plea).

[15] Exercising our remand power, this case shall be remanded back to the lower courts for a new ruling on sentencing. The finding of guilt is not disturbed.

CONCURRING OPINION by Judge ppatpat

[16] I join the Court’s judgment in full. I agree that the contempt conviction stands, and that the sentencing must be set aside and remanded because the judge did not take mitigation into account when imposing sentence and compressed mitigation to minutes while contemplating the maximum.

[17] I also commend the Court’s structured proportionality analysis at [10.1]–[10.5]. It is a valid way to assess whether a sanction is proportionate.

[18] For the Constitutional question of gross disproportionality, however, I would employ a simpler rule of thumb alongside that framework: is there any argument for such a severe sanction, grounded in the text of the law and the contemnor’s conduct? If there is a good-faith, text-anchored justification for the sanction chosen, then it is not constitutionally grossly disproportionate—even if another judge might have imposed less. The Constitution does not deputize us to trim every harsh edge; it tasks us with policing extremes.

[19] To be clear, “any argument” does not mean any pretext. The justification must be within the bounds the statute sets; tethered to a legitimate purpose the law recognizes (here, preserving order in the courtroom and the administration of justice); and factually connected to what the contemnor did (sustained, willful disruption in the judge’s presence). Where those conditions are met, our role is modest. We do not reweigh. We limit ourselves to asking whether the sanction crosses the constitutional line from severe to grossly disproportionate.

[20] Applied here, there is plainly an argument for a severe sanction. The contemnor persisted after warnings, and a mute directly addresses in-court disruption. A one-week mute sits at the statutory ceiling, but the ceiling exists for the very worst instances in facie contempt. On the merits of gross disproportionality, I would find the sanction constitutionally permissible for the reasons the Court gives at [10.1]—[10.5].

[21] With these observations, I concur.