Court File and Parties

Court of Appeal for Ontario Date: 20210108 Docket: C66895

Between: Her Majesty the Queen Respondent

And: Kevin Penzes Appellant

Counsel: Amy J. Ohler, for the appellant Manasvin Goswami, for the respondent

Heard: January 4, 2021 by video conference

On appeal from the sentence imposed by Justice A. Letourneau of the Ontario Court of Justice on October 11, 2018.

Reasons for Decision

[1] The appellant pled guilty to bank robbery. The trial judge imposed a sentence of four years, the sentence requested by the appellant and the Crown. The appellant now appeals seeking a three-year sentence. We dismiss the appeal.

[2] The appellant pled guilty and was sentenced on his first appearance only a couple of days after his arrest. Counsel for the appellant does not challenge the guilty plea. She acknowledges the trial judge made the appropriate inquiries and that the plea was voluntary and informed. Counsel does, however, submit the sentencing hearing was fundamentally unfair. She contends the trial judge should have adjourned the hearing, despite the appellant’s strong objection to any adjournment, and ordered a presentence report for the purpose of receiving additional information relevant to sentencing.

[3] We do not agree the appellant was treated unfairly. The appellant made it clear he wanted to be sentenced immediately. He was no stranger to the criminal justice system. The appellant also readily acknowledged his guilt and expressed strong concerns about spending any time in the local jail.

[4] The appellant told the trial judge he had been sexually assaulted several years earlier while in jail and had experienced serious emotional and mental problems as a result. He explained to the trial judge he had received help for those problems during his last stay in the penitentiary, but had been released on his mandatory release date before he was prepared to function effectively outside of the prison setting. The appellant was anxious to return to the federal correctional system in the hope he could re-enter the programs that had assisted him during his last incarceration.

[5] The appellant knew the Crown was seeking a four-year sentence. The appellant told the trial judge that, having regard to his criminal record, which included two prior bank robberies and a five-year penitentiary sentence on another charge, he believed the Crown’s position was reasonable. Indeed, the appellant thought he might get more than four years.

[6] Duty counsel spoke with the appellant. She told the trial judge that, while she was reluctant to support a guilty plea on a first appearance involving the imposition of a significant penitentiary term, she had been persuaded by the appellant that his request to be sentenced immediately and his agreement to a four-year sentence was appropriate in the circumstances.

[7] The trial judge had the information necessary to fashion an appropriate sentence. Given the appellant’s record and the nature of the offence which involved a threat of violence against a teller, a significant penitentiary term was necessary. The four-year sentence suggested by the Crown, supported by the appellant, and ultimately imposed by the trial judge, did reflect various mitigating factors, including the appellant’s early guilty plea and the emotional and mental health issues the appellant had described to the trial judge. In fact, the sentence imposed was intended to enhance the appellant’s rehabilitative prospects by providing for access to the treatments and programs that had assisted the appellant on a previous occasion. At the same time, however, the four years imposed reflected the seriousness of the crime and the appellant’s significant criminal record.

[8] The trial judge made no error in concluding four years was a fit sentence.

[9] The court has considered the fresh evidence offered by both the appellant and the Crown. We need not detail that evidence. It is sufficient to say the evidence tends to confirm the appropriateness of the four-year sentence imposed by the trial judge. The medical records show the appellant has received the help he hoped to get in the federal correctional system. According to the medical reports, he has shown progress and continues to show progress. The appellant is scheduled for release in June 2021. Hopefully, his progress will continue and when he is released this time he will be able to effectively adapt to life outside of the penitentiary.

[10] Leave to appeal sentence is granted, but the appeal is dismissed.

“Doherty J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”