A young Victoria driver who struck and catastrophically injured an 11-year-old girl in a Gordon Head crosswalk three years ago has been sentenced to two years in prison — a strong message for those who text and drive.
At the end of an emotional and prolonged sentencing hearing Monday, a tearful Tenessa Nikirk was handcuffed and led away by sheriffs to begin serving her sentence. The 24-year-old former nanny had been convicted in January of dangerous driving causing bodily harm to Leila Bui.
“Distracted driving continues to be a plague on our highways and roads,” said provincial court Judge Mayland McKimm. “Everyone who drives sees the activity carried out by otherwise law-abiding citizens regularly. Citizens need to understand that what they are doing is highly dangerous to others and could very possibly lead to severe harm or death. To those people who text and drive, they must understand that if serious consequences ensue there will be serious penalties.”
The judge rejected a plea from Nikirk’s lawyer Tom Morino to suspend Nikirk’s sentence until after Christmas.
“No. I have anguished about that. I have thought about that, and there is a child who will never have Christmas,” McKimm replied.
The judge found Nikirk’s driving to be a highly aggravating factor. On Dec. 20, 2017, Nikirk sent and received 25 text messages as she drove a distance of 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, she did not notice that a car had already stopped for Leila. Another driver sounded his horn. Nikirk continued to speed and struck Leila.
“There is no explanation provided as to how the child in the crosswalk could have been completely missed by the accused. There is no evidence the accused even slowed down prior to entering the crosswalk and striking the victim,” said McKimm.
Nikirk’s driving was wilful and deliberate, one small step short of street racing, said the judge. And the distracted driving was made worse by the “grossly excessive speeding” in the quiet residential neighbourhood.
In crafting a fit sentence, McKimm also had to assess the harm caused to Leila and the pain her family endures.
“Leila’s injuries are catastrophic and permanent. While [Nikirk] did not cause a death, the most sacred of human values, she caused harm one small step short of that. She has destroyed an innocent human being’s life forever. For these reasons, the sentence must be one that calls for a strong statement of denunciation and condemnation, he said,
Nikirk has no prior criminal record but her driving record shows three speeding tickets before the accident and, more importantly, one after she struck Leila. Her driving history suggests that she drives too fast as a matter of course, said McKimm.
He accepted that Nikirk suffers from real, profound and enduring remorse for what she has done.
The judge also noted that Nikirk offered to undertake restorative justice with Leila’s family, but they declined. She has also offered to speak to young people in the community about the perils of distracted driving, but that offer has not been accepted.
The Crown had asked for a federal sentence of 24 to 30 months. The defence asked that Nikirk be able to serve her sentence in the community.
“It is her otherwise good character and remorse that compels me to show restraint and sentence this offender to the lowest of federal sentences,” McKimm said.
A sentence of real incarceration will be more significant in deterring others and reflects the gravity of the consequences and the aggravated nature of the driving, he reasoned.
Nikirk is also prohibited from driving for three years after her release.
Outside court, in the pouring rain, Crown prosecutor Jess Patterson said he hopes the sentence sends a strong message about texting and driving.
“People need to remember what an incredible responsibility it is to drive a car and the resulting carnage that can happen when you take that responsibility for granted.. This is a tragedy that will affect this family forever and it will impact Ms. Nikirk as well. I realize that. I think that is the only positive that can come of this prosecution,” said Patterson.
“We want to deter the next person who gets into a car and thinks about texting or speeding because this is what can happen. We’ve lived with it for three years and we’ll be living with it for the rest of our lives. It doesn’t change anything at our end. Leila is still the way she is,” said Nguyen.
“This one chapter is closed but we’re still healing… It’s three years and one day since the accident. Now we have some kind of closure. I wish Leila was here for this.”
Leila is doing well, she said. The family is holding onto hope that one day she will recover.
“As long as she’s with us and she’s healthy and we keep advocating for all her needs and just to make her comfortable and happy and just to have her with us is the most important thing,” said Nguyen.
Leila’s father Tuan Bui said he applauded the judge’s decision.
“He put into perspective the lifelong damage with the consequences of reckless behaviour,” said Bui. We’re glad that it’s over. It’s finally over and now we can focus on the remedies for Leila so that she can have a quality life going forward. We don’t like to go to any more of these excruciating hearings. It’s behind us now and we look forward to an optimistic future for Leila.”