Donovan Powell v R
| Jurisdiction | Jamaica |
| Judge | P Williams JA |
| Judgment Date | 29 October 2021 |
| Neutral Citation | JM 2021 CA 124 |
| Docket Number | PARISH COURT CRIMINAL APPEAL NO COA2020PCCR00002 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 11
IN THE COURT OF APPEAL
THE HON Miss Justice P Williams JA
THE HON Mr Justice Fraser JA
THE HON Mrs Justice Dunbar-Green JA (AG)
PARISH COURT CRIMINAL APPEAL NO COA2020PCCR00002
Mrs Valerie Neita-Robertson QC for the appellant
Mrs Kameisha Johnson-O'Connor and Mrs Nickiesha Young-Shand for the Crown
On 22 July 2019, Mr Donovan Powell, the appellant, appeared in the Parish Court for the Corporate Area (Criminal) before the Judge of the Parish Court Her Honour Miss Jacqueline Wilcott (‘the Parish Court Judge’) and pleaded guilty on three informations charging him with breaches of the Cybercrimes Act, 2015. A social enquiry report was requested and his sentencing was adjourned.
On 22 November 2019, the appellant was sentenced to two terms of 12 months' imprisonment at hard labour on two of the informations, with the sentences to run concurrently and on the third he was ordered to pay a fine of $1,000,000.00 or serve four months' imprisonment in default of payment. This term of imprisonment of four months was to run consecutively to the sentences of 12 months.
The appellant gave verbal notice of his intention to appeal this sentence and was granted bail pending the outcome of the appeal.
The Parish Court Judge recorded the following as “the allegations read by the [C]rown”. The complainant, DC, and the appellant had been involved in an intimate relationship between November 2016 and the spring of 2018. During this time, DC said the appellant took “photographs of her and they both took photographs of her”. She however never gave him permission to take photographs of her nude body. She also told him to desist from videoing her.
After the relationship ended, DC was threatened that she would either be shot stabbed, ruined or destroyed. (As recorded by the Parish Court Judge, there was no indication who issued those threats.)
On 12 January 2017, the appellant sent DC, through WhatsApp messenger, a video that he had created. She observed that the video was naked photographs and private sexual images taken of her. She had not consented to the creation of this video. She also noted that along with the images were vulgar memes and pictures with typed words to the effect that she had a sexually transmitted disease which she had passed on to the appellant. DC recognised that an aspect of the video was of her exiting the bathroom at the Couples' Hotel in November 2016.
On 2 March 2017, the appellant sent her nude photographs and explicit photographs of her genitalia (it is not stated by what method these photographs were sent). These photographs had been taken of her while she slept. Also on that day in March, the appellant told DC that he had created videos and that he and others had access to them.
On 9 March 2017, the appellant sent DC a text message inviting her to visit a particular website. This was followed by an email again inviting her to visit the website. She visited and saw the same images and videos depicting her genitalia and those of her exiting a bathroom. The appellant told her he had created the website and he would be calling everyone she was associated with to tell them about this site. He also told her he would send explicit videos around her son's campus and threatened that her son would never play football again.
On 9 March 2017, DC was no longer able to access the website. However, she said on 3 April 2017, the site had been restored and that it contained the same private sexual images and videos.
The Parish Court Judge noted that in the plea in mitigation made on his behalf by Mrs Neita-Robertson QC, the appellant denied the allegations of physical threats and refuted those charges. He however accepted that he published private photographs that would cause her embarrassment but said he was given the photographs. He also said he accepted responsibility.
It is useful to note the charges as laid in the informations to which the appellant pleaded guilty. He was charged for breaches of section 9 of the Cybercrimes Act, which provides:
“(1) A person commits an offence if that person uses a computer to send to another person any data (whether in the form of a message or otherwise) —
(a) that is obscene, constitutes a threat or is menacing in nature; and
(b) with the intention to harass any person or cause harm, or the apprehension of harm, to any person or property,
but (for the avoidance of doubt) nothing in this section shall be construed as applying to any communication relating to industrial action, in the course of an industrial dispute, with the meaning of the Labour Relations and Industrial Disputes Act.
(2) An offence is committed under subsection (1) regardless of whether the actual recipient of the data is or is not the person to whom the offender intended the data to be sent.”
The informations on which the appellant pleaded guilty outlined the charges as follows:
“Information CA2018CR02462-2
[The appellant] on the 12 th day of January 2017, in the parish of Saint Andrew, used a computer to send data to [DC], which is obscene, with the intention to cause harm or to harass [DC] contrary to section 9 of the Cybercrimes Act.
Information # CA2018CR02462-4
[The appellant] on the 2 nd day of March 2017, in the parish of Saint Andrew, used a computer to send data to [DC], which is obscene with the intention to cause harm or to harass [DC] contrary to section 9 of the Cybercrimes Act.
Information # CA2018CR02462-5
[The appellant] on a day unknown between 2 nd day of March 2017 and 9 th day of March 2017 in the parish of Saint Andrew used a computer to send obscene data to [DC] and persons unknown via website [DirtyD.com], with the intention to cause harm or to harass [DC].”
The Parish Court Judge had the benefit of a social enquiry report, which she acknowledged was fulsome. She also acknowledged that it gave a good community report in relation to the appellant.
The report indicated that the appellant was born on 1 November 1964 and was 55 years of age at the time he was interviewed. It was noted that during his interview, the appellant was polite and cooperative. He sought to explain his actions. He explained that he had a relationship with DC while he was living in the United States of America (“USA”) which had ended many years ago. Twenty-seven years after it had ended, they rekindled the relationship and since he was now living in Jamaica, she came here to spend time with him. He alleged that the relationship soured when he contracted herpes and a sexual transmitted infection from her which caused him to believe that she was unfaithful.
This led to a confrontation which he said resulted in an intense quarrel. At the time they separated, DC left the condominium where they were staying in his absence and took with her some of his valuable possessions plus a telephone that had, recorded on it, most of their sexual encounters. He said that some months after she called him to say that he was a fool and she had used him to get a break and also have a good time. He also said she admitted to him that she had multiple sex partners hence the reason he contracted herpes.
The appellant stated that DC sent slanderous pictures and messages to his friends and family which caused him much shame and embarrassment. He explained that she had told him that she was going to ensure that he would not be able to return to the USA and she also exposed him on social media and the activist group ‘ME TOO’. He said he told her that if she did not stop slandering and discrediting him, he would do the same to her. He eventually retaliated by “sending pictures to her friends and family expressing what she did to him”. He said that he reacted out of anger and impulse but “regrets what his anger drove him to do and is remorseful for his deed, but never threatened her about rekindling the relationship”.
The residents from the community in which the appellant resides, described him as a pleasant and quiet individual. They added that he was helpful and cooperative and said that they never heard of any negative reports, wrong doings or rowdy behaviours in relation to him.
The complainant was also interviewed and stated that she had lived with the appellant in Jamaica for six months. She related that it was in November 2014, after they had ended their relationship and she went back to collect her belongings, that he began to blackmail her by sending her pictures online and threatened to kill her if she did not rekindle the relationship. She said that he also threatened to send the pictures and videos to family, friends and business colleagues in an attempt to ruin her reputation and credibility. She explained that this was the worse time of her life, as his actions made her feel ashamed, humiliated and reduced her ability to gain employment as a television show host and speaker. She further explained that she was affected emotionally and mentally. It was her wish that the appellant receive the maximum sentence.
Ultimately it was recommended that the appellant receive a non-custodial sentence.
The Parish Court Judge acknowledged that the law provided for a sentence of up to four years' imprisonment with or without hard labour and/or a fine of $4,000,000.00. She thereafter identified the starting point she believed was appropriate as “$1.5 million and 8 months…taking into account the discount for early plea and the SIR [sic]”.
She then proceeded to identify the mitigating and the aggravating factors. The migrating factors she identified are as follows:
“The SIR [sic] gives a good community report in relation to [the appellant]
It also indicates a degree of remorse.
He has no previous convictions in this jurisdiction.
Pleaded guilty without the need for...
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