The sentencing hearing for a Victoria woman who struck and catastrophically injured 11-year-old Leila Bui in a Gordon Head crosswalk three years ago has been delayed to allow the judge to hear constitutional arguments on whether he can impose a conditional sentence.
In January, Tenessa Nikirk was convicted by provincial court Judge Mayland McKimm of dangerous driving causing bodily harm. McKimm found Nikirk was speeding, texting and not paying attention to the girl or to crosswalk markings at Ash Road and Torquay Drive, or to other drivers already stopped at the intersection on Dec. 20, 2017.
The judge found Nikirk’s driving both before and at the time of the collision was dangerous to other users of the road. Leila was thrown 26 metres before coming to a stop wedged under an oncoming car. She suffered severe brain damage, a fractured neck and a lacerated spleen.
On Monday, Crown prosecutor Jess Patterson asked the court to impose a prison sentence of two to three years because of Nikirk’s prolonged pattern of dangerous driving.
“The appropriate sentence in this matter needs to reflect the gravity of the offence and the harm done to society, including the specific harm to Leila Bui and her family,” he said.
Leila’s mother, Kairry Nguyen, delivered a tearful victim-impact statement saying she had cried more in the last two-plus years than in her entire life combined.
“And the tears keep on coming, sometimes just sitting in my eyes, sometimes just a few drops, and sometimes just streaming down my face uncontrollably. … Without Leila, we will never be whole again. I will never be whole again, I miss her every day, every second and in every breath I take. Leila is a loud kid. The house seems eerily and sadly quieter without her. … Leila was an enormous ball of light and energy and affected everyone around her. I miss her glow, her warmth, her everything,” Nguyen said.
An aggravating factor was that Nikirk drove dangerously for more than five kilometres, said Patterson. Also aggravating is a speeding ticket Nikirk received in June 2019, he said.
Defence lawyer Tom Morino asked for a 90-day sentence intermittently on weekends. The defence lawyer also indicated that if the court handed Nikirk a provincial sentence — less than two years — he would make a constitutional argument to allow her to serve her sentence in the community.
Nikirk, 24, has no prior criminal history and has shown genuine remorse, said Morino. The former nanny has struggled with anxiety, depression and suicidal thoughts since the collision.
In a letter, read aloud by Morino, Nikirk said she is deeply and sincerely sorry “for the catastrophic damage I have caused to so many people, especially to Leila and her family.”
Outside court, Patterson explained to Leila’s family that the constitutional arguments will take two days before the case moves on to sentencing. The news upset Leila’s father, Tuan Bui.
“It’s been three years. I just want it to be over. It’s just another stunt and making it longer than necessary,” he said. “I understand the judge having to explore all the different options, but it’s added another couple of days where we have to relive the whole thing again. It’s just so hard to erase that image from our memory and to have to relive it again and again and again is not healthy.
“The only thing we want to get out of this is for the legal system to send a strong message to people who text and drive and realize it’s a very serious thing that could cause devastating pain to children. It’s got to be a strong message because otherwise, you know, it doesn’t deter.”
The message and the punishment from the court has to be consistent, said Nguyen. If it is, people will get the message.
“That’s the sad truth and the more I think about it, the more upset I get. I wouldn’t wish this on anybody. She stole our daughter’s life,” said Nguyen.
Nikirk’s apology was too little, too late, she said.