A Geelong police sergeant has been fined $4,250 for assaulting a prisoner but will not have a conviction recorded due to his exemplary service record. Sergeant David Magher was found guilty earlier this week in the Geelong Magistrates' Court of two counts of assault for kicking Andrew Birch at Corio Police Station in September 2018.
Magistrate John Lesser ruled that the first of three kicks was reasonable force, but the subsequent two kicks were 'gratuitous and unnecessary' and constituted assault. During sentencing, Magistrate Lesser noted that police officers often face challenging circumstances but must act lawfully with tolerance and patience.
The magistrate cited Sergeant Magher's 'exemplary' character and past history, including nine Victoria Police awards and 26 years of service, as reasons for not recording a conviction. He expressed hope that the sergeant would remember what constitutes lawful conduct if he remains in the force.
Defence lawyer Stewart Bayles highlighted his client's dedication to policing, including involvement in programs to reduce harm to officers and offenders, and his leadership in a youth crime reduction unit. Mr Bayles also noted that Sergeant Magher still deals with the impact of attending two teenage suicides and saving someone from an attempted suicide.
Mr Birch, who was 36 at the time, died a week after release from a suspected drug overdose. His father, Gary Birch, stated in a victim impact statement that the family was heartbroken to know his son was treated 'so inhumanely' days before his death. Magistrate Lesser expressed sympathy for the family but noted the statement was broader than the charges before him.
