A Kamloops man who repeatedly raped his niece over a period of years will have two years added to his sentence after a panel of judges sitting on B.C.'s top court went along with an appeal put forward by prosecutors.
Nihal Maligaspe, 72, was sentenced in June to 3.5 years in federal prison. Last year, a jury found Maligaspe guilty on two of three counts of sexual assault stemming from a series of incidents involving his niece, Dinushini Maligaspe, who he helped emigrate to Canada from Sri Lanka in 2001.
During a hearing last month in the B.C. Court of Appeal, Crown prosecutors argued the sentence was unfit given the circumstances of what Maligaspe did to Dinushini.
In a decision written on behalf of the three-judge panel, Justice Mary Saunders agreed the sentence was unfit when taking into consideration one instance of sexual assault, when Maligaspe found Dinushini unconscious in bed, having attempted suicide by taking pills.
Maligaspe raped her while she was in and out of consciousness, and didn’t take Dinushini, then a nursing student, to the hospital, telling her a mental health diagnosis would be a “black mark on her record.”
“The sentencing judge failed to give effect to both the gravity of that offence and the extent to which the relationship of trust was violated,” Saunders wrote.
“It was a rubicon in the sequence of [Maligaspe's] offending and, in my view, his crossing of it by continuing with his intent to have sexual intercourse with the complainant, in her awful circumstances, was not adequately reflected in the sentence imposed.”
Saunders noted the unique circumstances of the case, stating the judges had been referred to a number of cases, “but no cases of a similar cast.”
“No cases involving such age disparity, the circumstances of immigration and isolation, or the reduced cognitive circumstances of the complainant at the time of sexual assault," Saunders wrote.
The three judges agreed the appropriate sentence was five and a half years of imprisonment.
During last year's trial, jurors heard Maligaspe, a former instructor who worked at the nursing school at University College of the Cariboo — now Thompson Rivers University — helped Dinushini flee a “chaotic” home life in Sri Lanka.
He offered her a place to stay with his family in Kamloops, but not long after the 20-year-old moved to Canada, he began to force himself on her.
Dinushini enrolled in a four-year nursing program at the university college, and at one point, Maligaspe was her instructor.
During sentencing submissions after Maligaspe’s trial, prosecutors had sought eight years, while defence lawyers sought a term shorter than two years.
When appealing the sentence, Crown prosecutors had been looking for a sentence in the 6.5-year range, while defence lawyers asked for the sentence to be left as is.
