A young Victoria driver sentenced to two years in prison for striking and catastrophically injuring an 11-year-old girl in a Saanich crosswalk three years ago has been released on bail pending an appeal of her conviction.
Tenessa Rayann Nikirk was convicted last January of dangerous driving causing bodily harm to Leila Bui. On Dec. 21, provincial court Judge Mayland McKiim sentenced the 24-year-old former nanny to two years in prison, rejecting her lawyer’s plea to suspend her sentence until after Christmas.
On Dec. 29, criminal defence lawyer Donald McKay filed a notice of appeal with the Victoria court registry.
Nikirk spent two weeks in custody at the Alouette Correctional Centre for Women. She was released on $5,000 bail on Jan. 5 with conditions that include not driving and having no contact with any member of the Bui family.
On Wednesday, Leila’s mother, Kairry Nguyen, said Crown prosecutor Jess Patterson had told the family an appeal was likely, but Nikirk’s quick release was still a shock.
“It’s upsetting and I’m a little bit angry,” Nguyen said. “We wanted to close this chapter and send a message to the public that you can’t speed, text and be distracted when driving and get away with it.”
Tuan Bui, Leila’s father, said that by appealing, Nikirk is not taking responsibility for her actions and “there’s nothing you can do to respond to somebody like that.”
He said he’s disappointed the legal system doesn’t protect victims as well as offenders.
“We feel the victims don’t have enough rights or recourse. The guilty party has way more, and that needs to change,” he said, adding the criminal justice system is supposed to protect people in a community.
“But it’s not protecting people when deterrence doesn’t send the right message and people are able to be out enjoying their freedom when the victims have lost all their freedom.”
Nikirk’s appeal says the trial judge failed to consider key evidence and failed to resolve several contradictions in the evidence.
The appeal of the two-year prison sentence says the judge erred in imposing a federal sentence that deprived her of the right to make a constitutional argument for a conditional sentence.
In his reasons for sentence, McKimm found that on Dec. 20, 2017, prior to the crash, Nikirk sent and received 25 text messages as she drove 5.3 kilometres. She tailgated and passed two cars at once on a narrow road with no shoulder, speeding at 95 to 100 kilometres an hour in a 50 km/h zone. The busy roads were wet and had been frosty.
As Nikirk approached the intersection at Ash Road and Torquay Drive, where a car had already stopped for Leila, another driver sounded his horn, but Nikirk continued to speed and struck Leila in the crosswalk, leaving her with “catastrophic and permanent” brain injuries.
The judge noted that there was no evidence Nikirk even slowed down prior to entering the crosswalk and striking Leila.
He also noted that Nikirk received three speeding tickets before the collision and even one after she struck Leila. He said a sentence involving incarceration reflected the gravity of the consequences of Nikirk’s driving behaviour, and might serve to deter others.