Wayne Cheers: Ex-cop appeals assault conviction after teen spat on him
A man who was a cop in the Hunter for 29 years, before he was convicted of assaulting an intellectually disabled teen who spat on him, has had his appeal to overturn his conviction dismissed.
Newcastle
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The conviction stands for a Hunter police officer found guilty of assaulting an intellectually disabled teenager who spat on him several times at Toronto Police Station, following an appeal at Newcastle District Court.
A NSW police officer for 29 years, Wayne Heath Cheers was the custody manager at Toronto in May 2018 when the teenager — who was a known spitter and had tourettes — was brought in by officers.
When the teen was released from the cells, he spat on the back of Mr Cheers’ head, before the officer dragged him back into the cell and put his hand on the back of his neck, a court heard.
In a second incident, about 15-20 minutes later, the teen again spat on Mr Cheers which landed on his chest and leg, before he punched him in the head and another officer stood on his ankle to subdue him.
In December last year, Mr Cheers was sentenced on two counts of common assault, to a community corrections order (CCO) of 18 months, and a three year CCO with 250 hours of community service hours, as well as $1000 fine.
He immediately launched an appeal claiming it was self defence and had argued he acted “spontaneously” to get his face away from the boy, fearing he would spit on him again.
In Newcastle District Court on Thursday, Mr Cheers’ solicitor Jason Koh said it was a response to the assault from the teenager, with no premeditation in his actions.
“It was not necessarily a case of police brutality or violence in custody,” he said.
“There were actions taken by the victim against him to motivate his behavior – there is obviously no premeditation in either of these offences.”
Ms Koh wanted his honour to consider changing the sentence to a conditional release order with no conviction.
“He has served the public for almost three decades, recording of a conviction means he has had difficulties applying for new employment and job opportunities. There’s also the shame and humiliation,” he added.
But the Crown prosecutor wanted the appeal dismissed saying the victim was “vulnerable” and agreed with previous findings it was “unnecessary” and “excessive”.
“There is a community of expectation that members of NSW police should uphold the law, there should be a conviction,” he said.
In his decision, Judge Stephen Walmsley told the court he found Mr Cheers was in a position of authority, and there was some abuse of that.
His conviction on both charges remained. The first CCO was shortened to 12 months, while the second to two years.
The judge also deleted all community service hours and the fine attached.