SD v wall.b 2025 Crim 46
SD v wall.b [2025] crim 46
| Date of judgment | 17th April 2025 |
| Judge | Justice Ivy Cactus |
| Charges |
|
| Verdict |
|
| Sentence | Three (3) month ban, three (3) month suspended sentence |
| Applicable persuasive precedent |
JUDGMENT by Justice Ivy Cactus
Introduction
[1] The defendant was originally charged with a count of ToS violation and a charge of Hate Speech for a message that read “Kill yourself you retarded fuck”. The state alleged a ToS violation for the “Kill Yourself” part and Hate Speech for the “retarded fuck” part.
On The Charges
[2] The defense, at the beginning of pre-trial, motioned to have the charge of ToS violation dismissed on account of Article 3 §2 of the Criminal Code which states “In a case where one action fits many crimes, only one crime may be charged based on these facts; which shall be decided by the prosecution accordingly.”
[3] The defense then cites SD v Kadyisme [2025] Crim 9 in which the defendant was found not guilty of ToS charges on account of already having been found guilty of Hate Speech.
[4] The court was swayed by these arguments, the Criminal Code is quite explicit that a single action can not be charged under multiple statutes for the same “action”. While the court will not endeavor to say that this is universally the case, one would be hard-pressed to find a situation where posting one sentence counts as multiple actions.
[5] At this point, the prosecution voluntarily waived the Hate Speech charge, to which the defendant objected, stating that it needed to have been decided in the Criminal Complaint. The prosecution rejected this, citing again Article 3 §2. Where it is stated that the charge pursued in a case of overlapping charges should be “decided by the prosecution accordingly”.
[6] The court believes this to be the correct interpretation. The defense is free to object to the fact that the prosecution brought multiple similar charges, but they may not object to any specific one; the law explicitly allows the prosecution to choose what charge to pursue.
[7] The charge of Hate Speech was thus summarily dismissed, and the pre-trial continued based only on the charge of ToS violation.
On Mitigation Procedures
[8] Once the charges were sorted out, the defendant pleaded guilty and motioned for mitigation, after which the prosecution presented their recommended sentence and reasoning, and the defense then outlined mitigating circumstances and their recommended sentence. At this point, in line with the Court Room Procedures Act, the court ended the trial.
[9] The prosecution objected to this, asking for a chance to rebut the defense’s points. The court agrees that this would be better, especially considering the Criminal Code’s comments on mitigating factors and how they may be rebutted, which, in practice, can not be used.
[10] That being said, this court’s duty is to apply the law, not to decide it, and as such, it was unable to give the prosecution this chance. The court, due to this, would like to formally request that the Senate make changes to the Court Room Procedures Act to allow for more in-depth mitigation proceedings — the current situation is rather untenable.
Mitigating and Aggravating Factors
[11] The prosecution, during mitigation, argued for a six (6) month ban followed by a twelve (12) month suspended sentence, citing cases where the defendant got longer sentences because they weren’t first offenders (SD v Mooklyn [2021] Crim 4 and SD v changebac [2025] Crim 24) to explain why they recommend what they see as a more lenient sentence.
[12] The defense first argues, confusingly, that the above cases don’t apply. They argue that because the people in the cases above were repeat offenders, their sentences deserved to be longer — the very same thing that the prosecution argued. They, in a similar vein, point to the defendant’s history on SimDemocracy and how they have only contributed positively in the past before the incident that led to this trial.
[13] The defense also argues for provocation, stating that the reasonable person would expect someone who is queer to be provoked by taunts and messages praising President of the United States Donald J. Trump.
[14] Finally they explain that the defendant has offered to make a public apology, a mitigating factor stated in the Sentencing Act.
[15] In terms of it being a first time offense, the court agrees with both the prosecution and defense. The defendant has not shown this type of behavior in the past and it makes sense for the court to be more lenient in this and similar cases.
[16] The plea of guilty and the offer for public apology are also rather persuasive and outlined explicitly as mitigating factors in the Sentencing Act.
[17] In terms of provocation, the defense did not provide to the court any evidence of the victims actions that would have caused the reasonable person to lose control. Dealing with differing political views is an everyday fact of life — your average person does not start slinging slurs or death threats when they are faced with someone who disagrees with them and the reasonable person would not expect them to do so.
Verdict
[18] The defendant is found guilty of one count of ToS Violation.
[19] Due to the several mitigating factors outlined above they are sentenced to a three (3) month ban, starting from the time of arrest, followed by an additional three (3) month suspended sentence.
Postscript
[20] Any and all decisions of law made by the court may be appealed to the Supreme Court.
Citations
<references />