The Supreme Court of Appeal has refused a Warrnambool man's fight to overturn an eight-year jail sentence handed down after he beat another man in an unprovoked attack.
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Trevor Van Kempen was 37 when he pleaded guilty in County Court of Victoria last year to causing serious injury intentionally in circumstances of gross violence.
He was sentenced to eight years and 10 months' jail with a non-parole period of five years and 10 months.
Lawyers for Van Kempen had argued the sentence was excessive, stating the judge erred in finding the offender was not suffering from impaired mental functioning at the time of the offending, and that his moral culpability wasn't reduced by that condition.
But on February 23, Justices Maree Kennedy and Lesley Taylor refused the application for leave to appeal the sentence.
They said there was clearly evidence of Van Kempen being entirely cognisant and aware of the wrongfulness of his actions.
"The judge's finding was not only reasonably open, but correct," they said in their judgement.
It was also found the sentencing judge was entitled to find Van Kempen's moral culpability shouldn't be reduced and he must be held morally responsible.
Van Kempen and the victim, Matthew Kelly, then 45, were strangers to each other at the time of the offending in June 2020.
Mr Kelly had been dropped at Warrnambool's Hopkins River Milk Bar by his disability support worker so he could buy a can of diet Coke and walk home.
It was a weekly routine for the victim, who has Fragile X syndrome and an intellectual disability.
Van Kempen came up from behind and beat the victim, punching him multiple times to the face, knocking him to the ground and then jumping on his head.
Mr Kelly was transported to Warrnambool Base Hospital where he was placed in an induced coma.
He was then flown to Royal Melbourne Hospital where he underwent brain surgery.
He spent six weeks in hospital recovering from fractures to his face and skull, bleeding on the brain and several significant complications, including pneumonia and seizures.
The victim still suffers long-term consequences including a traumatic brain injury and slurred speech.
During a plea hearing last year, a family member of Mr Kelly said in a victim impact statement he'd lost his desire to leave home.
"A small piece of independence that saw him make his way to his local milk bar for a drink was taken away from him," he said.
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