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Shayne Berwick, who is severely brain-damaged following a racially motivated attack against him and his Asian friends, poses for a photo with his mother Terry, left, and father Colin, right, in their Toronto home on August 2, 2012. Today the assailant Trevor Middleton lost an appeal to overturn his conviction but the Ontario Court of Appeal also refused to increase his jail term which is just a day short of two years.Michelle Siu/The Globe and Mail

For Shayne Berwick's father, the consolation was that the man who inflicted severe brain injuries to his son in a racially charged attack would return behind bars.

"Two years less a day for what he did? For what he's shaken up in the Asian community? He's ruined my son's life. He's ruined my life and my wife's life," Colin Berwick said. "The only good thing that came out of this is that he's back in jail."

The elder Mr. Berwick spoke after the Ontario Court of Appeal unanimously ruled Thursday that there will not be a harsher sentence against his son's assailant, Trevor Middleton, a motocross racer from Sutton, near Lake Simcoe.

Mr. Middleton was out on bail until the Court of Appeal's judgment.

While noting that Mr. Middleton's sentence of two years minus a day was lenient, the appellate court said it remained "within the appropriate range" and should be left to the trial judge's discretion.

The Court of Appeal also rejected a bid by the accused to overturn his conviction.

Mr. Middleton was convicted of aggravated assault and criminal negligence after his pickup truck repeatedly rammed a car, injuring Mr. Berwick, a Toronto apprentice electrician.

Mr. Berwick is Caucasian but was fishing with Asian friends when they were attacked, at a time when several cases of "nip-tipping" – a racist term used to described pushing Asian anglers into water – were reported in Southern Ontario.

The elder Mr. Berwick, whose son is no longer autonomous, mentioned the fact that Mr. Middleton recently became a father. "I'm kind of happy that he is going to miss his child's first steps and his first Christmas with him. I know that sounds harsh, but my son will never have those opportunities."

The sentencing term cannot be appealed further. Mr. Middleton could appeal his conviction but would have to seek leave from the Supreme Court of Canada since the Court of Appeal ruling was unanimous.

The ruling said Mr. Justice Alfred Stong of the Ontario Superior Court was within his rights to impose a short sentence after he deemed that the accused "was a youthful first offender with a solid background whose actions that night were completely out of character."

Mr. Middleton was 20 at the time."While the sentence imposed here can certainly be viewed as one at the lower end of the scale, the trial judge was clearly attempting to impose the maximum he could without sending [Mr. Middleton], as a youthful first offender, to the penitentiary," Madam Justice Kathryn Feldman of the appeal court wrote.

"The trial judge's reasons were thorough and nuanced … I would defer to his decision."

Mr. Middleton's lawyer, Lance Beechener, said the sentence would keep his client away from hardened criminals in federal penitentiaries, making his rehabilitation easier.

Chinese community representatives, however, said the sentence is no deterrent to racist crimes. "What Mr. Middleton participated in was a hate crime. His sentencing should reflect this, giving the clear message that Ontario and Canada do not tolerate hate crimes of any sort," said May Lui, an executive at the Toronto chapter of the Chinese Canadian National Council.

Mr. Berwick and six friends, including Charles Hogan, Liu Ruohang and Shiv Kumar, were fishing near Lake Simcoe on Sept. 17, 2007, when a group of local men, including Mr. Middleton, appeared. One unidentified man was heard saying, "We're going nip-tipping."

They pushed Mr. Liu and Mr. Hogan off the dock. As the local men left, one of them, a friend of Mr. Middleton's, got into a fight with Mr. Kumar.

Eventually, Mr. Kumar, Mr. Berwick and two others climbed into a Honda Civic to leave. But Mr. Middleton, who was at the wheel of a Ford pickup truck, turned around and chased the Honda. The pickup truck repeatedly rammed the car until the smaller vehicle crashed into a tree. Mr. Berwick and another passenger were thrown out of the car.

Mr. Berwick had to learn again to walk and feed himself. He no longer starts conversations and can't remember anything for more than a few minutes. His mother had to quit her daycare job to help look after him.

Judge Stong found that, by being part of a group that intentionally set upon a group of anglers that included Asians, Mr. Middleton showed that he "harboured personally a prejudice and bias that was obviously present in the group."

Mr. Berwick's family has filed a civil suit that will resume once the criminal proceedings end.

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