A Jamaican man who in 2019 pleaded guilty to distributing sexually explicit photos and video footage of his former girlfriend will be going to prison despite a partly successful appeal.

Donovan Powell committed the act on American television anchor Darieth Chisolm, in what he said was an act of retaliation against her for sending pictures and messages to his friends and family, causing him “much shame and embarrassment.”

Powell, who was charged for breaches of section 9 of the Cybercrimes Act, was sentenced in the Corporate Area Criminal Court to a year in prison on each of two of three counts to which he pleaded guilty and was ordered to pay a fine of $1 million or serve four months’ imprisonment in default of payment on the third count to which he pleaded guilty. The four months were to run consecutively to the two-year sentence.

He, however, appealed the sentence on the basis that it “was manifestly excessive”. His attorney, Valerie Neita Robertson, QC, in the appeal filed last year, also batted for a non-custodial sentence and a reduction in the fine.

The Court of Appeal, in handing down its judgement on the matter, set aside the sentences imposed by the parish court in relation to the first two counts and instead ruled that Powell should spend six months on each at hard labour. The sentences are to run concurrently which in effect means half a year in total.

The Appeal Court, however, upheld the parish court’s ruling in respect of the $1 million fine or four months’ imprisonment if Powell defaults. It also upheld the order of the parish court judge requiring that the term of imprisonment in default of payment of the fine should run consecutive to the other counts.

In outlining the reasons for its decisions the court said, “Given that Powell was a first-time offender and pleaded guilty on the first occasion, he was to be given the full benefit of a 50 per cent reduction in the sentence, thus a term of six months’ imprisonment is appropriate”. It said the judge in the matter had erred in the sentencing exercise in this respect.

However, on the matter of the monetary fine it said, “We are compelled to comment on the fact that the fine, which can be viewed as the lesser punishment, was imposed for the most egregious act of creating the website. We considered whether this sentence ought to be disturbed to reflect the fact that the imposition of this sentence seemed not to fully reflect the serious nature of this offence when compared with the first two.

“However, while we recognise that we have the power to increase the sentence, having not given an indication that we would consider doing so, we accept that it would be unfair and a breach of natural justice to do so, having not heard from the appellant or his counsel on this issue,” the court said, adding that in the circumstances a reduction in the fine “is not warranted”.

The Appeal Court in the meantime said, “There can be no dispute that the offences for which [Powell] was charged were serious, given the impact they could have on the victim.

“It could well be argued that the actions of sharing the nude photographs and videos with [the female] alone may have only been embarrassing to her; but certainly the appellant’s deliberate desire to humiliate her escalated when he created a website specifically for posting the objectionable and offensive item,” it pointed out.

Powell, in explaining his actions, said he had been involved with Chisolm while he was living in the United States of America before parting ways. However, 27 years after going their separate ways they rekindled the relationship. He said by this time he had been living in Jamaica and she came to visit him.

He alleged that the relationship soured when he contracted herpes and a sexually transmitted infection from her, which caused him to believe that she had been unfaithful. This led to a confrontation which, he said, resulted in an intense quarrel. At the time they separated, he said she left the condominium where they were staying in his absence and took with her some of his valuable possessions plus a phone 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. Powell further said she 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 had 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.

This week the court said while it could not be ignored that Powell said his one-time partner had given him the photographs and that she had done some hurtful things to him, his desire for revenge may well have explained his first act, but said for him to have persisted in the manner he did, “culminating in the ultimate act of creating the website made his behaviour sufficiently serious to warrant the consideration of a custodial sentence”.

“If he had committed a single act, a suspension of a custodial sentence might have been appropriate,” it noted.

According to the complainant, it was in November 2014, after they had ended their relationship and she went back to collect her belongings, that Powell began to blackmail her by sending her pictures online and threatened to kill her if she did not rekindle the relationship. She said 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 had been the worst time of her life, as his actions made her ashamed and humiliated and reduced her ability to gain employment as a television show host and speaker. She further explained that she had been affected emotionally and mentally. She also asked that the court give him the maximum sentence.