R. v. Knowlton Date:, 2014 BCPC 163

Citation: R. v. Knowlton Date: 20140617 2014 BCPC 0163 File No: 203944-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN DOUGLAS KNOWLTON Publication Ban Pursuant to Sections 486.4(1) and 486.4(3) REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HAMILTON Counsel for the Crown: W.L. Sayson, Q.C. Counsel for the Defendant: I. Ferbey Place of Hearing: Surrey , B.C.

Dates of Hearing: May 30 and June 11, 2014 Date of Judgment: June 17, 2014 INTRODUCTION [ 1 ] Kevin Douglas Knowlton, a thirty three year old American citizen, has pled guilty to a number of offences relating to his relationship with R.D., a twelve-year old girl living in Surrey, British Columbia. This relationship began in June or July, 2013 when Mr. Knowlton and R.D. met over the internet while playing an online video computer game. [ 2 ] Early in this relationship, R.D. told Mr. Knowlton that she was twelve years old. Despite knowing the age of his victim, Mr.

Knowlton and R.D. engaged in sexualized behaviour over web-cameras on their computers. In December, 2013, Mr. Knowlton drove to Surrey from his home in Utah to meet R.D. and spend a week together. They engaged in sexual intercourse during that week. [ 3 ] Mr. Knowlton returned to Surrey a total of four more times over the two months between December, 2013 and February, 2014. On his visits to Surrey to meet with R.D. he would rent a motel room and the two pursued their sexual relationship. Mr.

Knowlton captured their sexual experiences in photographs and videos. [ 4 ] As I will describe later, the results of this relationship with Mr. Knowlton have been catastrophic for R.D. [ 5 ] Mr. Knowlton has never contested his guilt to the offences he faces. He was arrested in Surrey on February 17, 2014 and on March 12, 2014 he entered guilty pleas to three of the charges he is facing, namely: (

a) Internet Luring contrary to

section 172.1(1) (

b) of the Criminal Code ; (

b) Sexual Interference with a person under the age of 16 years contrary to

section 151 of the Criminal Code ; and (

c) Making Child Pornography contrary to

section 163.1 of the Criminal Code . [ 6 ] The Crown submits that the range of sentence given the facts of this case is a jail sentence of two years followed by three years probation up to a jail sentence of four years to be served in a federal penitentiary. The Crown’s position on sentence is that Mr. Knowlton should receive a two-year jail sentence followed by three years probation. [ 7 ] Mr. Knowlton’s position on sentence mirrors that of the Crown - he seeks a two-year jail sentence followed by three years probation. The Crown and Defence disagree on the amount of time that Mr.

Knowlton should receive as credit for his pre-sentence detention. [ 8 ] As well, Mr. Knowlton argues that he should receive a credit against the time he must serve in jail because as an American citizen he will be subject to a removal order and deported back to the United States upon his release from custody. Individuals who are serving a jail sentence in Canada and who are subject to a removal order and deportation, are not eligible for early release on parole. Rather, they must serve two-thirds of their sentence in custody and can only be released from custody upon achieving their statutory release date.

There is case law that supports a sentencing judge’s discretion to award a credit against the sentence imposed in those circumstances. [ 9 ] I had initially considered this to be a case of a joint submission on sentence given the identical submissions made before me, but when the sentencing hearing continued on June 11, 2014, counsel advised that theirs was not a joint submission. I have proceeded on that basis. [ 10 ] Accordingly, the issues that I must resolve on this sentencing hearing are: (

a) Is the proposed sentence presented by the Crown and Defence a fit and proper sentence given my assessment of Mr. Knowlton’s degree of responsibility for the crimes he committed against R.D. combined with the aggravating and mitigating factors in this case?; (

b) How much credit should Mr. Knowlton receive for his time spent in pre- sentence detention?; and (

c) Should Mr. Knowlton receive a further credit against his jail sentence given his pending deportation and the resultant lack of early release on day parole? BACKGROUND [ 11 ] As I have indicated, Mr. Knowlton is a thirty three-year old American citizen who is originally from Utah. He grew up in a Mormon family. His father was a polygamist and had five wives. Mr. Knowlton has fourteen full siblings and fifty seven siblings in total. Mr. Knowlton’s mother was fourteen when she married his father who was forty two years her senior - fifty six years old. Mr. Knowlton’s father died at the age of ninety when Mr.

Knowlton was six years old. [ 12 ] Mr. Knowlton is clearly a very intelligent man. He completed high school and then attended UCLA where he completed a

Bachelor of Science degree in computer science and engineering. He was accepted to complete a Master’s Degree at UCLA but declined. [ 13 ] Following university, Mr. Knowlton accepted a job with a company, Raytheon, where he built radars for the US military. He was involved in developing the radar system for the US F-15 fighter jets. He lost that job after he was implicated in a crime involving stolen gift cards. The charges were dropped but he lost his security clearance to continue his employment with Raytheon, and he was fired. [ 14 ] Mr.

Knowlton then sought employment with one or more of his brothers before securing a job with Wahoo Games writing software for computer-based games that could be used for advertising. He was working for Wahoo until the date of his arrest on these charges on February 17, 2014. [ 15 ] Mr. Knowlton has an unenviable history with women. During high school he was socially isolated and did not have any significant relationships with women. When he was twenty-two years old he travelled to Europe with two of his brothers and decided to engage in his first sexual experience with a prostitute in Prague, Czechoslovakia.

He did not want his first sexual experience to occur within an emotional relationship. [ 16 ] His first and only significant relationship as an adult was with Angela Cook. They met through one of Mr. Knowlton’s nieces and their relationship progressed very quickly. Mr. Knowlton proposed marriage to Ms. Cook early in their relationship, but they were never formally married. The relationship lasted about two years and ended when Ms. Cook began sexual relations over the internet with another male. Mr. Knowlton and Ms. Cook lived together for about four months during this two-year long relationship. [ 17 ] Mr.

Knowlton engaged in a few other fleeting relationships, largely based upon the internet, but he did not engage in any further meaningful or significant relationships. [ 18 ] Mr. Knowlton became interested in pornography when he was seventeen years old after he received some soft pornography magazines from an older brother. Mr. Knowlton began to access internet pornography when he was nineteen or twenty years old. I think it is fair to say that Mr.

Knowlton became obsessed with accessing internet pornography. [ 19 ] He masturbated frequently and on occasion he would masturbate up to ten times a day to see if he was capable of completing that task. He was frequently accessing internet pornography and that frequency began to bother Mr. Knowlton. In the psychological assessment completed for this sentencing hearing, Mr. Knowlton advised Dr. Stangeland, the author of the report, that from the time he was eighteen years old, until March, 2013, he had been a “slave” to looking at pornography and that this disturbed him. [ 20 ] Approximately two years ago, Mr.

Knowlton was living with his twenty seven-year old niece and he made an amorous advance towards her. This upset Mr. Knowlton’s niece and he became disturbed that he would do this to her. Nothing sexual occurred between Mr. Knowlton and his niece, but Mr. Knowlton was so upset over what he had done, combined with his concerns over his excessive access to pornography, that he decided he would get himself castrated. In March, 2013, Mr.

Knowlton attended at a surgeon’s office in Michigan and had his testicles surgically removed. [ 21 ] His next sexual relationship was with the victim in this case, R.D. [ 22 ] R.D. is twelve years old, or at least she was at all material times covered by these charges. I do not know R.D.’s date of birth. [ 23 ] I have not been told where her family originates from, but she is of […] descent. I infer that her family of origin is from […]. [ 24 ] Prior to R.D. meeting Mr. Knowlton online she was an honour roll student. She lived with her mother and father in Surrey, British Columbia.

From the limited information I have about R.D’s family, I believe that her grandmother lived in the family home as well. [ 25 ] I know nothing further about R.D.’s background in her years prior to meeting Mr. Knowlton. Both R.D. and Mr. Knowlton met while playing an online computer-based internet game in June or July, 2013. They began communicating over the internet while playing this online game. At some point R.D. told Mr. Knowlton that she was unhappy in her home life. She said that she was mistreated by her parents including inappropriate physical discipline. Mr.

Knowlton tried to convince R.D. to speak to a school counsellor or contact the local office of child protection social workers, but R.D. declined. [ 26 ] Shortly after R.D. and Mr. Knowlton met online events occurred that form the basis for the charges against Mr. Knowlton. THE CRIMINAL OFFENCES [ 27 ] It is clear that a relationship quickly developed between Mr. Knowlton and R.D. They were communicating daily through this internet computer game. They began to show each other their naked bodies through the use of web-cameras early in their communication. In the first two weeks of their relationship Mr.

Knowlton became very attached to R.D. He proposed marriage to her, although Mr. Knowlton told Dr. Stangeland that he did this because R.D. was insecure and Mr. Knowlton felt that his marriage proposal would give her more confidence. [ 28 ] Mr. Knowlton told Dr. Stangeland that two days after he proposed marriage to R.D. she told Mr. Knowlton that she was twelve years old and he “rashly broke up with her.” [ 29 ] However, another female Mr. Knowlton met through this online game was a friend of R.D. and this other female told Mr.

Knowlton that if his relationship with R.D. was “meant to be then it is meant to be.” Thereafter Mr. Knowlton decided to “give [R.D.] another shot.” [ 30 ] As their communication progressed, R.D. began to tell Mr. Knowlton that she was experiencing a difficult life at home

receiving physical beatings by her parents. There is no evidence before me that establishes the truth of those assertions. Regardless, according to Mr. Knowlton, R.D. was begging for Mr. Knowlton to come to Surrey and she apparently threatened to kill herself if Mr. Knowlton did not oblige. [ 31 ] Mr. Knowlton told Dr. Stangeland that he “eventually relented” and travelled from Utah to Surrey in December, 2013 where he rented a motel room and went to meet R.D. Over the course of the week that Mr.

Knowlton was in Surrey, he and R.D. engaged in unprotected sexual intercourse. [ 32 ] With reference to the sexual intercourse, Mr. Knowlton told Dr. Stangeland that R.D. was very curious about what it would be like to have sexual intercourse. He further stated to Dr. Stangeland that, “I should have been the adult at that point… it was not the appropriate course of action.” Mr. Knowlton acknowledged that he knew he was committing a crime by having sexual intercourse with twelve-year old R.D. [ 33 ] In addition to the sexual activities, Mr.

Knowlton took photographs of their sexual experiences together with R.D.’s camera because, according to Mr. Knowlton, R.D. wanted photos of their experiences together. [ 34 ] Between December, 2013 and February 17, 2014, Mr. Knowlton travelled between Utah and Surrey a total of five times to pursue his sexual relationship with R.D. In addition to the photographs, Mr. Knowlton filmed videos of their sexual activities. When he was arrested on February 17, 2014, Mr. Knowlton was found in possession of numerous photographs and videos of himself and R.D. [ 35 ] On the basis of those facts, Mr.

Knowlton was charged with a total of five offences including the three offences set out at the start of these Reasons; namely, Internet Luring, Sexual Interference of a Person under 16 years of age, and Making Child Pornography. [ 36 ] On March 12, 2014, Mr. Knowlton entered guilty pleas to these three counts on the five-count indictment and a stay of proceedings will be entered with respect to the outstanding two charges at the conclusion of this sentencing.

APPLICABLE SETENCING PRINCIPLES [ 37 ] In sentencing offenders for crimes against children, our Court of Appeal has clearly stated that the sentencing judge must give primary consideration to denunciation and deterrence - R. v. B.C.M. 2008 BCCA 365 . The Ontario Court of Appeal in R. v. Dragos, 2012 ONCA 538 , had this to say about the sentencing principles in cases of sexual crimes against children by quoting from their earlier decision in R. v. Woodward , 2011 ONCA 610 : 88.

Woodward also holds, at para. 76 , that in sentencing adult offenders for the exploitation of innocent children: While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well- being of our children must take precedence. [ 38 ] Accordingly, in arriving at a fit sentence for Mr. Knowlton’s crimes, I must give primary consideration to denunciation, deterrence, and separating Mr.

Knowlton from society while also considering the prospects of rehabilitating Mr. Knowlton. [ 39 ] With respect to denunciation, the sexual violation of a vulnerable child by an adult deserves a sentence that delivers a message that society cannot, and never will, tolerate such deviant and destructive crimes against children. Society abhors the sexual exploitation of children for the benefit of an adult and the sentence that I impose upon Mr. Knowlton should reflect that unconditional condemnation of those crimes. [ 40 ] With respect to deterrence, Mr.

Knowlton must be stopped from committing sexual crimes against children ever again. Mr. Knowlton must understand and accept that what he did to R.D. was wrong, and he must understand why it was wrong. For reasons that I will come to shortly, I am not sure Mr. Knowlton has that understanding yet. [ 41 ] In addition to deterring Mr. Knowlton, my sentence must serve to deter other, like-minded individuals, from sexually violating children. Such offenders must know that if they offend against children in this way they will be going to prison for a substantial period of time. [ 42 ] Separating Mr.

Knowlton from society for the safety of society and our children is self-explanatory. Until Mr. Knowlton receives counselling and therapy to help him to understand why he committed these crimes against R.D., and he is able to put in place behavioural safeguards to ensure, as far as possible, that he will not sexually victimize children in the future, Mr. Knowlton needs to be kept securely away from society. [ 43 ] And lastly, with respect to rehabilitation, Mr. Knowlton is only 33 years old. He has told Dr. Stangeland that he is willing to engage in counselling and therapy while he is incarcerated. Mr.

Knowlton has no history of sexual crimes against children. His prospects for rehabilitation seem good provided he is exposed to an effective course of treatment and therapy. The sentence I impose should provide Mr. Knowlton with the best opportunity to access therapeutic resources to help him gain an understanding of, and insight into, his crimes against R.D. with a view to preventing further crimes in the future. MITIGATING AND AGGRAVATING FACTORS AGGRAVATING FACTORS

[ 44 ] Turning first to the aggravating factors in this case. [ 45 ] Mr. Knowlton’s offences against R.D. have wreaked catastrophic consequences in her young life. Before Mr. Knowlton entered her life, R.D. was an honour roll student. She had no behavioural problems at school or at home. She was a well-behaved and successful young girl on her way to a rewarding life. [ 46 ] Today, R.D. has resorted to cutting herself with shards of glass. She is not in the school she was enrolled in before Mr.

Knowlton began sexually abusing her, rather she is in a different school to help her cope with the trauma she has experienced and is slowly coming to realize. She is in desperate need for counselling to come to grips with the crimes that have been committed against her. She has lost her school, her pathway through life, and her safety. I said the consequences have been catastrophic and I am of the view that is not an understatement. [ 47 ] Second, having read and re-read the Pre-Sentence Report prepared by Deepak Gill and the Psychological Assessment prepared by Dr. Stangeland, I am of the view that Mr.

Knowlton has demonstrated a complete absence of any remorse or insight into his crimes and the damage he has inflicted on his young victim. [ 48 ] In a number of instances in these reports Mr. Knowlton makes comments that not only suggest, but explicitly state, that what occurred between himself and R.D. was at the behest of this twelve-year old child. [ 49 ] I think that some examples will help to demonstrate my concerns: From The Pre-Sentence Report [ 50 ] At page 5, Ms. Gill writes that Mr.

Knowlton disclosed that R.D. was a virgin and that they had unprotected sex the first time; however, they used a condom on the second occasion only because R.D. wanted to know what it felt like. [ 51 ] From this I infer that Mr. Knowlton thought that it was entirely appropriate to have unprotected sex with a twelve-year old child and that, but for R.D.’s curiosity to try protected sex, the unprotected sex would continue unabated. Mr.

Knowlton might have been under the impression that unprotected sex carried no risks with him given that he has been castrated, but if that is his view it demonstrates his total lack of insight into the danger he exposed this child to. It is not alright for twelve-year old girls to be having unprotected sex with anyone. It is even worse if the first sexual experience of a twelve-year old girl involves unprotected sex with the attendant risk that the child receives a message that unprotected sex is okay. [ 52 ] Again on page 5, Mr.

Knowlton justified his behaviour stating that R.D. was very sexual and she would tell him to take his clothes off. He stated that he showed her pornography but only because she wanted to see what other penises looked like. [ 53 ] So Mr. Knowlton’s view is that he only engaged in these activities because it is what R.D. wanted and had nothing to do with his choice to undress for her or his obsession with pornography. [ 54 ] Again at page 5, in one of his more remarkable statements to Ms. Gill, Mr. Knowlton said that sexual intercourse with R.D. hurt because she was “so tight.” Mr.

Knowlton acknowledged that at first R.D. was uncomfortable, however, this changed. [ 55 ] Mr. Knowlton takes no responsibility for causing a painful experience to R.D., rather the problem was that she was “so tight.” [ 56 ] Again at page 5, in referring to the child pornography, Mr. Knowlton said it was R.D.’s idea to record the sexual incidents and that he simply complied as he is a “people pleaser.” [ 57 ] Again, conspicuous by its absence is any acknowledgement that Mr.

Knowlton’s decision to record the sexual encounters with R.D. may have been motivated, in part, by his obsession with pornography. [ 58 ] At page 6, and in what I would characterize as a failed attempt to express some insight into his crimes, Mr. Knowlton said that he felt that the offence has perhaps made R.D. confused about her sexuality and that she may feel that she has to be sexual in order to be loved. Furthermore, Mr. Knowlton told Ms. Gill that he feels that R.D. will find someone who will take advantage of her and blackmail her. [ 59 ] I gather from this comment that Mr.

Knowlton does not recognize or accept that he took advantage of R.D. [ 60 ] Lastly from the Pre-Sentence Report, I refer to this comment at page 6 which is utterly inexplicable. “Mr. Knowlton describes himself as a heterosexual, interested only in age appropriate females.” Mr. Knowlton carried on a sexual relationship with a twelve-year old girl. On five separate occasions he travelled hundreds of kilometres between his home in Utah and Surrey to be with R.D. While I accept that R.D. is a sexually developed twelve-year old, she is not age appropriate.

The concern I have, based upon the comment noted above, is that Mr. Knowlton is of the view that R.D. is age appropriate. From The Psychological Assessment [ 61 ] Similar comments are replete in Dr. Stangeland’s report. In particular I refer to page 3 where Mr. Knowlton gives the impression that, at least during the early stages of his relationship with R.D., much of what happened was R.D.’s idea. The comments also serve to highlight Mr. Knowlton’s lack of insight into his crimes. The following are a few of the comments taken from Dr. Stangeland’s report at page 3. (

i) Mr. Knowlton stated that R.D. really wanted his attention and she also gave him a lot of attention. (ii) As I referenced earlier in this decision, Mr. Knowlton stated that two days after he proposed to R.D., she told him her age. He claimed that he could not deal with finding out how old she was and he “rashly broke up with her.”

(iii) Mr. Knowlton claimed that at this point, R.D. began begging for him to come to see her. She told him that her life was hell and that her parents beat her all of the time. He claimed that she threatened to kill herself if he would not come to see her. He admitted that he eventually “relented” and came to Canada to see her early in December, 2013. (iv) And lastly at page 10 of the report Mr. Knowlton makes the following startling comments. Mr. Knowlton described his current mood as being “happy.” When asked to rank his mood on a scale of 1-10 with 1 representing depression, he placed himself at 7.

He reported that he was at 3-4 during the first month that he was in jail, but he is now in protective custody and everyone is being nice to him. His sleep has been good. He has been eating a lot and he has had energy to work out frequently. [ 62 ] From these comments regarding his state of mind, I take it that Mr. Knowlton is not struggling with any emotional ill effects from his crimes. He certainly is not cutting himself with shards of glass like R.D. I am not sure where in Mr.

Knowlton’s state of happiness there are any feelings of remorse for the crimes he has committed. [ 63 ] The third aggravating factor in this case is the high moral culpability of Mr. Knowlton. Mr. Knowlton knew from an early point in his online contact with R.D. that she was only twelve years old. It was upon learning her age that he, to use his words, “rashly broke up” with R.D. [ 64 ] As I have already indicated, after some encouragement from one of R.D.’s friends Mr. Knowlton decided to pursue the relationship and reconnected with R.D.

Fully aware of her age he made the choice to travel to Surrey from Utah and engaged in multiple sexual encounters with this twelve-year old child. He was in a position of authority over her given the wide age difference between the two of them, yet he chose to abuse that authority and had sexual intercourse with R.D. multiple times. [ 65 ] Again in a startling comment to Ms. Gill, the author of the Pre-Sentence Report, Mr. Knowlton said that he did as R.D. wished as he cannot say no; however, Mr.

Knowlton confirmed that “he will say no if it violated his sense of morality.” From that comment I infer that luring a twelve-year old over the internet, travelling hundreds of kilometres across the Canada/US border to be with her, engaging in multiple sexual acts including unprotected sexual intercourse, and then filming and photographing those acts - all done by a 33-year old man with an obsession for pornography - does not violate Mr. Knowlton’s sense of morality. It is difficult to imagine a more aggravating circumstance than that.

MITIGATING FACTORS [ 66 ] In arriving at a fit sentence in this case I am mindful of the mitigating factors in this case and they are significant. [ 67 ] First, Mr. Knowlton has no criminal record so he comes before the court as a first time offender. [ 68 ] Second, Mr. Knowlton has entered a very early guilty plea. Mr. Knowlton, to his credit, has chosen not to put the state to the time, cost, and trouble of what would likely have been a difficult case given the international scope of this case.

However, he was caught “red-handed” as they say and in that respect the Crown’s case is fairly strong. [ 69 ] Most significantly, Mr. Knowlton’s guilty plea means that R.D. will not have to testify at trial. As I have already said, R.D. has suffered catastrophic consequences as a result of Mr. Knowlton’s crimes against her. I have no doubt that having to testify, at such a young age, and in detail about such intensely personal matters of her sexual violation would be extremely difficult and likely to cause further damage to R.D. Mr.

Knowlton’s guilty plea has spared R.D. that further harm. [ 70 ] In addition, I am told that Mr. Knowlton co-operated fully with the police in their investigation of this case and for that Mr. Knowlton deserves credit. [ 71 ] The last mitigating factor I wish to comment on is the Psychological Assessment in which Dr. Stangeland concludes that Mr. Knowlton is a low risk to reoffend. It appears to me that Dr. Stangeland’s opinion is largely, but not entirely, based upon Mr. Knowlton’s self-reported statements to the doctor. [ 72 ] In addition, Dr. Stangeland does not appear to have considered Mr.

Knowlton’s view that what happened in this case was at R.D.’s request - a feature that is often colloquially referred to as “blaming the victim.” I have set out above under the aggravating factors a number of excerpts from both reports that I believe clearly establishes that Mr. Knowlton holds the belief that much of what happened between himself and R.D. was the result of R.D.’s desire for this to happen. [ 73 ] When I look at Dr.

Stangeland’s list of factors under the Risk for Sexual Violence Protocol set out at pages 14 to 16 of his report, I am unable to agree with his analysis in respect of a number of these factors: (

i) Factor 6 - Dr. Stangeland says, “Kevin was quite open in acknowledging his behaviour and taking responsibility for his actions.” [ 74 ] For the reasons I have already articulated, I do not agree that Mr. Knowlton has taken responsibility for his crimes against R.D. beyond entering his guilty plea. Mr. Knowlton attributes much of what occurred as being at R.D.’s request or insistence. (ii) Factor 7 - Dr. Stangeland says, “Kevin did not express any thoughts or attitudes that might rationalize or justify his sexual misconduct.” [ 75 ] Again, for the reasons I have already articulated, I do not agree with this comment from Dr. Stangeland. Mr. Knowlton justifies

and rationalizes his crimes against R.D. as being, at least in part, R.D.’s idea. (iii) Factor 8 - Dr. Stangeland says that Mr. Knowlton “gave the impression of being reasonably self-aware.” [ 76 ] Again, I do not agree. Rather, I have come to the conclusion that Mr. Knowlton has little to no insight into the reasons for his offending and/or why his crimes are wrong. (iv) Factor 11 - Dr. Stangeland comments on Mr. Knowlton’s sexual deviance by saying that, “It is necessary to rely on Kevin’s report since there is no other information about his sexual preferences.

He insisted that his sexual orientation is towards adult females and that he has no interest in children or young adolescents. His actions may be a contradiction to this statement, but Kevin claimed that his victim was physically well-developed and that he believed her to be a young adult at the time that their relationship developed.” [ 77 ] Some of these comments from Mr. Knowlton are difficult to reconcile with the facts of this case. He clearly had a sexual interest in R.D. who, at twelve years old, is a young adolescent. As for Mr.

Knowlton’s statement that R.D. was a physically well- developed girl, that may be so, but Mr. Knowlton knew early in their relationship that she was twelve years old, he “rashly” broke up with her, and then after some encouragement reconnected with her and pursued his sexual relationship with her. How this information factors into Dr. Stangeland’s opinion in this case is unknown. (

v) Factor 21 - Dr. Stangeland says that Mr. Knowlton is willing to attend a sex offender treatment program if so directed. [ 78 ] This may be so, but to conclude that any problems with treatment are absent on account of Mr. Knowlton expressing a willingness to attend for treatment ignores the much more significant issue that Mr. Knowlton has no insight at all into the reasons he committed these crimes, or if he does, he has not yet articulated those reasons to any of the professionals he has encountered during this process. [ 79 ] Also, at page 16 of his report, Dr.

Stangeland lists twenty-one factors that might be considered to reduce Mr. Knowlton’s risk of offending. I do not agree that some of these factors are indicative of a low risk that Mr. Knowlton may commit further criminal offences. (

i) Factor 6 - Dr. Stangeland says that Mr. Knowlton, “was forthright in admitting his sexual misconduct and taking responsibility for it.” I cannot add to what I have already said that leads me to conclude that Mr. Knowlton does not take responsibility for his crimes beyond the fact that he has entered guilty pleas to the three offences for which he is being sentenced. (ii) Factor 7 - Dr. Stangeland says that Mr. Knowlton, “does not appear to entertain values that would be conducive to sexual offending.” Again, I have commented earlier about Mr.

Knowlton’s stated ability to say “No” to activities that violate his sense of morality - page 5 of the Pre- Sentence Report. (iii) Factor 10 - Dr. Stangeland says that Mr. Knowlton, “insisted that his primary sexual orientation is towards adult females.” Well that may be the case, but his primary sexual orientation did not stop him from sexually offending against twelve- year old R.D. (iv) Factor 11 - Dr. Stangeland says that Mr. Knowlton’s “sex drive has been reduced as a result of having himself castrated.” It is not at all clear to me how Dr. Stangeland reaches this conclusion since all of Mr.

Knowlton’s offences against R.D., including sexual intercourse, occurred after he was castrated. (

v) And lastly, at the bottom of page 16 of his report, Dr. Stangeland reaches the following conclusion: …it is my opinion that Kevin represents a low level of risk for future sexual misconduct. The unknown factor is the presence of pedophilia sexual fantasies, as is suggested by his actions in this case. He insists that he does not have such fantasies or inclinations. If such fantasies are present, it would increase his level of risk. The most obvious risk scenario is that Kevin might become romantically attached to a younger female and lose sight of what is appropriate sexually. [ 80 ] Beyond Mr.

Knowlton’s self-report, his actions in this case suggest that there is a significant risk, without Mr. Knowlton achieving some understanding of why he offended against R.D. in the manner he did, that he will not understand that what he did here was wrong. Without Mr. Knowlton demonstrating some insight into his offending there continues to be a significant risk that Mr. Knowlton may become romantically attached to a young female and lose sight of what is appropriate. Accordingly, I am of the view that Dr. Stangeland’s opinion that Mr.

Knowlton is a low risk to reoffend is simply not supported by the evidence in this case. DETERMINATION OF THE APPROPRIATE SENTENCE FOR MR. KNOWLTON [ 81 ] For each of the offences that Mr. Knowlton has entered guilty pleas, there is a mandatory minimum sentence of one year in jail. [ 82 ] In his written submissions in this hearing, Mr. Sayson, Q.C., for the Crown says that the sentence imposed for similar offences range from nine years in jail to fifteen months in jail. Looking at cases that have facts similar to this case, with offenders in relatively

similar circumstances as Mr. Knowlton, the Crown submits that the applicable sentencing range is two years in jail followed by three years probation, up to four years in a federal penitentiary. Mr. Ferbey, on behalf of Mr. Knowlton, acknowledges that the range of sentence proposed by the Crown is applicable in this case. [ 83 ] The Crown included in its brief of authorities a number of cases that establish the proposed sentencing range. When this sentencing hearing resumed before me on June 11, 2014, I advised counsel that I had concerns that the sentence being proposed by both the Crown and Mr.

Knowlton - that being two years in jail followed by three years probation - did not adequately address the applicable sentencing principles in this case. I had concerns that the facts of this case, coupled with Mr. Knowlton’s lack of insight and failure to take responsibility for his crimes by blaming R.D., justified a sentence above the very bottom of the sentencing range proposed by counsel. [ 84 ] I do not propose to review the sentencing cases at length. As is common in these cases, it is difficult to find authorities that are squarely on point factually with the case at bar. The cases of R. v.

Aimee, 2010 BCSC 1463 , and R. v. Patey, 2012 NLTD(G) 126 have many similarities to the case before me. However, in those cases the Defendants took the cases to trial, so there was no mitigation in sentencing for a guilty plea. As well, there were two victims in each of those cases. In addition, in R. v. Patey , there was one occasion of forced anal intercourse with the fifteen-year old complainant. [ 85 ] In R. v. Aimee , the accused was twenty-nine years old and his victims were sixteen and fourteen years old respectively.

The court was left with a reasonable doubt as to whether the complainants had told the accused their ages, but the court concluded that the accused was wilfully blind on that issue. There was a psychological assessment of Mr. Aimee that he was a low risk to reoffend. The court sentenced Mr. Aimee to a period of four years in jail less time served of thirty-one months leaving a net sentence of seventeen months to be followed by three years probation. [ 86 ] In R. v. Patey , the accused at the time of the offences was twenty-nine or thirty years old and his two victims were fourteen and fifteen years old.

With the exception of the one incident of non-consensual anal intercourse with the fifteen-year old complainant, the victims gave factual consent to the sexual activity which included multiple incidents of sexual intercourse. Mr. Patey denied the offences, expressed no remorse, and had not accepted responsibility for his actions. The judge sentenced Mr. Patey to three years and six months in prison along with a number of ancillary orders. [ 87 ] Another case that I found instructive is the British Columbia Court of Appeal’s decision in R. v. R.R.B., 2013 BCCA 224 . While the factual circumstances of Mr.

B.’s offences against his victim are different in many ways from Mr. Knowlton’s offences against R.D., there are remarkable similarities between Mr. B.’s attitude and Mr. Knowlton’s attitude towards their crimes. I have set out in some detail above the evidence before me regarding Mr. Knowlton’s attitude towards his crimes against R.D. [ 88 ] With respect to Mr. B., his victim was a childhood friend of Mr. B.’s son. Mr. B. and his family were good friends with the family of Mr. B.’s victim. When Mr. B.’s victim would come to the B. home for sleepovers with his friend, Mr.

B. would engage the child in sexual touching and, on a few occasions, fellatio. Mr. B.’s victim was nine years old when the sexual offences began and they continued over a period of several years. At the time of the offences Mr. B. was between thirty-six and forty-three years of age. [ 89 ] In upholding the sentencing judge’s decision to send Mr. B. to jail for four years, the Court of Appeal noted that the sentencing judge accepted the expert opinions that Mr. B. was not a paedophile, and that he was a low risk to reoffend. The expert in R. v. B. concluded that Mr.

B.’s behaviour “was attributable to emotional immaturity, inappropriate neediness and an exaggerated need to please others.” Mr. B. made statements to the expert that, “the young victim had initiated the sexual activity” and the judge referred to Mr. B.’s “apparent failure to recognize the inappropriateness of his behaviour at the time it was occurring.” These comments are all equally applicable to Mr.

Knowlton, in my view. [ 90 ] In the course of its decision, the Court of Appeal quoted extensively from the sentencing judge’s reasons including the following at paragraph 12: I am also alarmed and not a little disturbed by the contents of this psychiatric report in which statements attributed to the accused clearly indicate his belief that the complainant, who was nine when this all started, was the dominant force in this sexual relationship. It was the complainant, he said, who started the sexual contact and initiated each and every sexual incident, it was the complainant who was confident and assertive.

In the accused’s mind, he, the mature adult, was the submissive party, taking the path of least resistance, participating because he didn’t want the complainant to feel badly about himself or so as not to hurt his feelings. The accused seems to refer to the matter as if he was swept away by the assertiveness and charisma of a child and allowed himself to be borne along without much reflection. I am aware that in the same report the accused expressed himself to be remorseful and motivated to rehabilitation, but his views expressed to Dr.

Lohrasbe, again only a short few months ago, lead me to question whether even now he appreciates the magnitude of the wrong he has committed and the overwhelming responsibility that he bears for what happened. [ 91 ] It is my view that the criticisms of Mr. B., could be equally levelled at Mr. Knowlton. Again, while the facts of the offences in the R. v. R.R.B. are dissimilar in some respects from the facts in the case before me, the attitudes of the offenders in the two cases bear a striking similarity.

As I have noted the British Columbia Court of Appeal upheld the sentence of four years in prison imposed by the sentencing judge in R. v. R.R.B . [ 92 ] In the case at bar, counsel have sought a two-year jail sentence followed by a three-year period of probation. [ 93 ] I am concerned that the period of probation adds very little to Mr. Knowlton’s sentence. The only two terms sought on the probation order are a term prohibiting contact by Mr. Knowlton with R.D., and a term that Mr. Knowlton not come back to British Columbia.

[94] I am told that Mr. Knowlton will be removed from Canada upon his release from custody and returned to the United States. Any probation order I make as part of Mr. Knowlton’s sentence would be unenforceable in the United States. In other words, Mr.Knowlton would be able to contact R.D. with impunity. While it is true that Mr. Knowlton would face a prosecution for contacting R.D.if he was to return to Canada, the proposed probation order would also contain a term prohibiting his return to British Columbia. I am ofthe view that if Mr.

Knowlton contacted R.D. upon his return to the United States, it is unlikely he would return to British Columbia orCanada given the risk that he would face further criminal charges. [95] As well, I am not convinced of the utility of a probationary term prohibiting Mr. Knowlton’s return to British Columbia. Withhis conviction for his offences against R.D., Mr. Knowlton will not likely ever be permitted to return to Canada so that term in hisprobation is unnecessary. [96] Considering all of the evidence before me on this sentencing hearing, the aggravating and mitigating factors, my assessment ofMr.

Knowlton’s degree of responsibility for his crimes, along with the authorities presented and reviewed above, I am of the view that afit global sentence within the sentencing range advanced by counsel is a period of imprisonment for three and a half years. I am of theview that such a sentence sends the necessary denunciatory message, will effectively deter Mr. Knowlton and other like-mindedoffenders from offending against children, will separate Mr.

Knowlton from society for a sufficient period of time to allow him to accessthe available therapy for sex offenders in the Canadian federal prison system, and will give Mr. Knowlton the time he needs to reflect onhis crimes and with the assistance of the sex offender treatment programs available to him through the federal prison system to gain abetter understanding of why he committed these crimes against R.D. [97] With respect to the federal sex offender treatment programs, I can do no better than refer to the information provided in the Pre-Sentence Report from Ms.

Gill where she says at page 7: Kevin would likely be classified to Mountain Institution which is a medium security penitentiary. This institution offers medium andhigh intensity sex offender treatment programs facilitated by Correctional Program Officers who are specifically trained to delivercorrectional programs. Kevin would most likely need the Integrated Correctional program Model (ICPM) High Intensity Sex OffenderTreatment Program which is of 104 sessions duration. Each session is approximately 2.5 hours in length. On top the offenders arerequired to complete assignments and projects.

Preceding the main program, CSC (Correctional Service of Canada) starts offenderprogramming with the Integrated Correctional Program Model (ICPM) Primer which includes 10 sessions and lengthy one to oneinterviews in order to identify an offender’s risk and needs. [98] I am of the view that given the lack of insight and the lack of acknowledgement of responsibility (beyond the guilty plea)demonstrated by Mr. Knowlton in this case, the intensive treatment program as described by Ms. Gill is necessary to achieve Mr.Knowlton’s rehabilitation in this case.

CREDIT FOR PRE-SENTENCE DETENTION [99] With regard for the credit Mr. Knowlton is entitled to receive for his pre-sentence detention, I am satisfied on the basis of therecent decision in R. v. Summers, 2014 SCC 26 that Mr. Knowlton would be eligible for release before the end of the sentence I haveimposed. He had no criminal record and appears to this point to be a compliant and well-behaved prisoner. Accordingly giving Mr.Knowlton credit for his pre-sentence detention at a rate of 1:1.5 and taking into account that he has been in pre-sentence detention forexactly four months, Mr.

Knowlton will have credit for six months pre-sentence detention leaving a net sentence for him to serve ofthirty-six months, or three years. CREDIT AGAINST SENTENCE GIVEN MR. KNOWLTON’S IMMIGRATION STATUS [100] Counsel for Mr. Knowlton provided me with R. v. J.W.S., 2013 NSPC 7 , 2013 N.S.P.C. 7, a decision of Judge Derrickfrom the Provincial Court of Nova Scotia which addresses circumstances such as Mr. Knowlton’s where his immigration status meansthat there is a likelihood that a removal order will be issued ensuring his deportation upon his release from custody.

In thosecircumstances the sentencing judge has a discretion to give some credit against the sentence imposed on the offender to account for thefact that the offender must serve his sentence up to his statutory release date and is not eligible for day parole and unescorted temporaryabsences from prison. [101] In this case I decline to exercise my discretion and grant Mr. Knowlton any additional credit against the sentence I am imposing. My view is that Mr.

Knowlton needs to access and hopefully achieve maximum benefit from the counselling and sex offender treatmentprograms available to him in the federal penitentiary. I have concluded that Mr. Knowlton’s need for counselling and therapy outweighshis lack of access to unescorted temporary absences and early day parole. Accordingly, I decline to grant a further credit against hissentence as a result of his immigration status. CONCLUSION [102] For the foregoing reasons, Mr.

Knowlton I sentence you as follows: Count 1 - Internet Luring: One year in jail; Count 2 - Sexual Interference: Two and a half years in jail with credit for pre- sentence detention of six months for a netsentence of two years to be served consecutively to the sentence imposed on Count 1; and Count 4 - Making Child Pornography: One year in jail to be served concurrently to the sentence impose in Count 2.

[ 103 ] I am satisfied that the sentences in Counts 1 and 2 should be served consecutively as they constitute separate offences that are connected in time but are nonetheless separate criminal offences against R.D. The sentence in Count 4 is so inextricably tied up with the offence in Count 2 that I am satisfied that sentence should be served concurrently with the sentence imposed in Count 2. [ 104 ] While I understand that I cannot order this, I will direct that Mr.

Knowlton’s warrant of committal be marked with the direction that upon his release from custody he is to be released only into the care and control of a Canadian Border Services officer to effect his immediate deportation from Canada and to be handed over to officers with the United States Homeland Security office. [ 105 ] I will Order pursuant to

section 490.012 of the Criminal Code that Mr. Knowlton is to comply with the Sex Offender Information Registration Act for life. The lifetime order is pursuant to

section 490.013 (2.1) [ 106 ] I will Order pursuant to

section 487.051(1) of the Criminal Code that Mr. Knowlton provide a sample of his DNA for the federal DNA data-bank. [ 107 ] Pursuant to

section 164.2(1) of the Criminal Code I will order that Mr. Knowlton forfeits all of the child pornography seized from him as part of this investigation. [ 108 ] I will order pursuant to

section 743.21 of the Criminal Code that while Mr. Knowlton is incarcerated in Canada he is to have no contact directly or indirectly with the complainant R.D. - which means no contact by telephone, text messages, over the internet, or in writing. [ 109 ] I will order pursuant to

section 486.4 of the Criminal Code that a publication ban will remain in effect indefinitely prohibiting the publication of any information that could identify the complainant in this case, R.D.. [ 110 ] Given the somewhat unique circumstances of this case in that Mr. Knowlton will be escorted from prison by a Canada Border Services Officer upon his release from prison to be returned to authorities in the United States, I will order that Mr.

Knowlton is to pay the Victim Fine Surcharges applicable to each of the three counts I have dealt with in these Reasons, forthwith, and failing payment he will serve one day in jail for failing to pay those fines, those sentences to be served concurrently with the sentences I have imposed above. [ 111 ] Pursuant to

section 743.2 of the Criminal Code , I order that a copy of these Reasons for Sentence, along with a copy of Ms. Gill’s Pre-Sentence Report and Dr. Stangeland’s Psychological Assessment be forwarded to the Correctional Services of Canada. [ 112 ] And lastly, I expect the Crown will now direct a Stay of Proceedings to be entered in respect of Counts 3 and 5 on the Information before the Court. The Honourable Judge R.N. Hamilton Provincial Court of British Columbia