A Geelong police officer found guilty of assaulting a prisoner has avoided a conviction due to his “exemplary” history in the police force.
Sergeant David Magher was earlier this week found guilty in the Geelong Magistrates’ Court of two counts of assault, after kicking Andrew Birch at Corio Police Station in September 2018.
Magistrate John Lesser today sentenced Sergeant Magher to pay a $4,250 fine for the assault but decided not to record a conviction.
Earlier in the week, Magistrate Lesser ruled the first of three kicks delivered by Sergeant Magher was a reasonable use of force but the two kicks that followed were assault, describing the kicks as “gratuitous and unnecessary”.
During sentencing, Magistrate Lesser said police officers were required to confront people on a regular basis that were “often reactive and defiant” but the community was “required to trust that even in these challenging circumstances police must act lawfully, which requires a great deal of tolerance and patience”.
“Your character and past history to that point are exemplary, in terms of your employment, and in my view there is a likely impact of recording a conviction on both your social wellbeing and economic wellbeing and your future employment prospects,” he said.
“On balance therefore I have decided to exercise discretion not to record a conviction.”
Magistrate Lesser said he hoped if Sergeant Magher remained in the police force that he always remembered what constituted “lawful and appropriate conduct”.
Defence lawyer Stewart Bayles argued his client’s background, with no prior convictions and nine Victoria Police awards for exemplary work, should be considered when sentencing.
He also asked Magistrate Lesser to take into account Sergeant Magher’s dedication to policing over his 26-year career, including being part of a program to reduce mental and physical harm to police officers and offenders, and being in charge of a unit in Geelong to reduce youth crime.
Mr Bayles said Sergeant Magher still dealt with the impact of attending two teenage suicides in the years before the 2018 incident and saving someone from an attempted suicide on the West Gate Bridge.
He said Sergeant Magher had also been seriously injured “multiple times” throughout his career.
Mr Birch, who was 36 at the time of the incident, died a week after being released from custody from a suspected drug overdose.
In a victim impact statement, Mr Birch’s father Gary Birch said his son was “larger than life” and someone who showed “genuine remorse” when he did the wrong thing.
“Andrew’s four days in custody were very stressful for our family. We were aware something had happened but were not aware of any information. We were trying to help him but couldn’t,” Gary Birch said.
“To know he was treated so inhumanely days before his death breaks our hearts.”
Magistrate Lesser said he “felt great sympathy” for the Birch family for their loss, but noted that the family’s victim impact statement was within “a much broader context than just the charges [Sergeant Magher] must be sentenced on today”.
The magistrate said he hoped the sentencing brought “a conclusion to what has been a long and difficult process for you to follow”.
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