



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Penzes, 2021 ONCA 7

DATE: 20210108

DOCKET: C66895

Doherty, Zarnett and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Penzes

Appellant

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
    appellants 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 Crowns 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 appellants 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 appellants 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
    appellants 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 appellants 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.


