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Judge considers jail term for driver who killed six-year-old
A Kelowna man convicted of impaired driving following a crash that killed a six-year-old boy and injured his mother will have to wait to find out how long he will spend in jail after Crown and defence asked for dramatically different sentences.
Cody Wengenmayr, 21, had a blood alcohol level of between 114 and 138 milligrams in 100 millilitres of blood when he struck Trey Alphonse, 6, and his mother, Iris, as they jaywalked across Highway 97 just after 10 p.m. on Aug. 30,
2010. Trey died and his mother was injured.
“I can’t apologize enough for what I have done,” Wengenmayr told the court Tuesday. “I am very sorry for the pain and suffering I caused [the Alphonse family].”
He called his actions “stupid” and said “I can only hope other people learn a lesson from my mistake.”
The consequence for that mistake should be a three to four year jail term, argued Crown counsel Dave Ruse, citing case law that suggests a two to five year sentence for first time offenders.
Defence counsel David Johnson argued case law suggests a sentence of between 1-4 years, but said the Wengenmayr case is “unusual.”
“Nowhere could I find a similar fact pattern” in the case law used to guide sentencing submissions, said Johnson.
He argued for a sentence of 90 days, to be served intermittently, or, alternatively, a sentence of no more than one year, followed by probation.
“This is no clear cut case, where the blame rests solely on Mr. Wengenmayr,” said Johnson. Although Wengenmayr is “morally at fault,” he suggested the judge needs to “balance” that with Iris Alphonse’s decision to jaywalk that night.
Crown noted other drivers were able to see Alphonse crossing the road and stop.
Johnson also argued that Wengenmayr only displayed “minimal” signs of impairment that
“It’s obviously a lesson to us,” said Johnson, noting people often go out for a few beers and “think they’re fine.”
“The thing this case points out quite clearly is there are effects from alcohol that a person might not notice but are present,” said Johnson.
However, Ruse said Wengenmayr should have learned that lesson the month prior to the crash, when he was pulled over and blew a “warn” when his breath was tested by police.
“It would have been brought home to him the level of alcohol that causes problems,” argued Ruse.
As well, Wengenmayr had a novice licence and wasn’t to be driving with any alcohol in his system, Ruse said.
Because of the gap between the Crown and defence’s sentencing submissions, Justice Gregory Bowden has reserved his decision.
“I will give this a great deal of thought, realizing he will have to go to jail,” said Bowden. “My decision is how long.”
A conditional sentence—a jail sentence served in the community—is no longer a sentencing option because in recent years Parliament has removed that option in cases where there is serious bodily injury.
Bowden will also need to determine the length of Wengenmayr’s driving ban. Crown has
suggested five to 10 years; defence has asked for less, noting Wengenmayr stopped driving following the crash.
The case will return to court Monday to confirm a sentencing date.