A judge will decide Monday if the driver who struck and catastrophically injured 11-year old Leila Bui in a Gordon Head crosswalk three years ago should go to jail or serve her sentence in the community.
In January, Tenessa Nikirk was convicted by provincial court Judge Mayland McKimm of dangerous driving causing bodily harm to the girl. The judge found Nikirk was speeding, texting and not paying attention to the girl, or to the crosswalk markings at Ash Road and Torquay Drive, or to other drivers already stopped at the intersection on Dec. 20, 2017.
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 Friday, at Nikirk’s sentencing hearing, McKimm said a sentence of between 18 months and two years less a day is appropriate. He still must decide, however, whether to impose a conditional sentence or jail time.
One factor that will weigh heavily is the gravity of Leila’s injuries, McKimm said.
The court heard that Leila has a severe traumatic brain injury and is in a vegetative state. The right side of her brain is dead, while the left side of her brain, which was also severely damaged, is deteriorating. Leila can open her eyes, but she can’t move on her own or respond. She can breathe on her own because she has a tracheotomy in her throat that helps her.
Crown prosecutor Jess Patterson argued that Nikirk should serve a jail sentence because a conditional sentence would not address the sentencing principles of denunciation and deterrence. He reminded the court of Nikirk’s prolonged pattern of dangerous driving, which included passing two cars at a high rate of speed on a road with little or no shoulder, the gravity of the offence, the harm done to society and the specific harm to Leila and her family.
“Incarceration will provide more denunciation than a conditional sentence,” said Patterson, citing case law.
An aggravating factor is that Nikirk drove dangerously for more than five kilometres, he said. Also aggravating is a speeding ticket Nikirk received in June 2019. “Her moral culpability is at the highest end of the range,” he said.
Defence lawyer Tom Morino argued that Nikirk should be allowed to serve her sentence in the community, saying conditional sentences can provide denunciation and deterrence.
Nikirk, now 24, was 21 when she struck Leila. She 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.
Morino said Nikirk’s dangerous driving was not intentional, as in street racing.
The crash has devastated the Bui family.
At the sentencing hearing in late October, Leila’s mother, Kairry Nguyen, delivered a tearful victim-impact statement, saying she had cried more since the collision than in her entire life before.
“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,” she said. “Without Leila, we will never be whole again. I will never be whole again.
“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.”
Leila’s father, Tuan Bui, said the only thing the family wants from the legal system is that it send a strong message that texting and driving can have devastating consequences.