While 13-year-old Leila Bui sat in her wheelchair, a pair of sunglasses covering her closed eyes and a purple blanket protecting her small, immobile frame from the January wind, her parents Kierry Nguyen and Tuan Bui tearfully told reporters all they want is a genuine apology from the driver who hit her.
But the judge determining the sentence for Tenessa Nikirk has a difficult decision to make, says Victoria defence lawyer Michael Mulligan.
“Oftentimes the people who do these things aren’t otherwise bad people,” Mulligan said. “It’s much harder if you’re sentencing someone who is otherwise a trouble-free, law-abiding person who on some occasion had some bad judgment and caused this tragic result.”
Nikirk was convicted of dangerous driving causing bodily harm after she struck then 11-year-old Leila, with her SUV in a Saanich crosswalk in December 2017. Leila received catastrophic injuries to her brain and body and has been in a non-responsive state since. She is fed through a tube and bound to her wheelchair and since she was hit, requires constant care.
The guilty verdict means an automatic breach of insurance coverage – putting Nikirk on the hook for the little girl’s medical care, which could go on for a lifetime.
“It’s a cautionary tale for anyone driving that way – you may spend the absolute rest of your life paying for it,” Mulligan says, adding that even filing for bankruptcy won’t protect drivers if the court imposes a fine or restitution order.
In his guilty decision, Judge Mayland McKimm listed Nikirk’s speeding, tailgating and texting in his decision, writing that she was engaged in “distracting behaviour for some time prior to the moment of impact.”
Throughout the trial, witnesses, dashcam footage and texting records painted a picture of a negligent driver, and McKimm wrote he was satisfied that the “dangerous driving in question is the cause of the accident which left tragic injuries to the victim.”
But Mulligan says in cases like these, moral culpability and deterrence create questions worth examining. Should a dangerous driver who gets lucky and doesn’t hit anyone be treated the same as a dangerous driver, like Nikirk, who isn’t so lucky?
“Why should the lucky dangerous driver be sentenced differently from the unlucky dangerous driver?” Mulligan poses. “Surely we’re trying to discourage dangerous driving – not ‘unlucky’ dangerous driving.”
Even if the behaviour – not the consequence – is what leads to the guilty verdict, it’s the consequence that changes the outcome.
“We do punish people more when there is more harm flowing from it,” Mulligan said.
All that can be done from a sentencing point of view, is punish the driver, he added.
“No matter what we do in terms of administering punishment, it simply cannot fix the harm that’s been caused. … This case is a complete and utter tragedy, it will have a devastating effect on the entire life of this young girl and it will have a devastating effect on the young person who was driving the Mercedes and has been convicted.
“It will be a life-changing event for both of them, for their families and ultimately, there’s no sentence that can be imposed that fixes any of that.”
Nikirk will be in court Tuesday to fix a date for sentencing.
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