Director of Public Prosecutions v Kearney (a pseudonym)

[2025] VCC 1043

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEFFREY KEARNEY (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2025
DATE OF SENTENCE:	28 July 2025
CASE MAY BE CITED AS:	DPP v Kearney (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1043

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Offender convicted of one charge of reckless conduct endangering serious injury by attempted strangulation of victim (his wife) – offender was a police officer and victim was his wife – no prior criminal history – offender had PTSD and Major Depressive Disorder (not argued to be causative of offending) – no remorse – offender continued to deny his offending

Legislation Cited:      Crimes Act 1958, Crimes Amendment (Non-fatal Strangulation) Act 2023

Cases Cited:Skeates (a pseudonym) v The King [2023] VSCA 226, R v Verdins (2007) 16 VR 269

Sentence:                  Community Correction Order with conditions

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Thomas (trial & plea) Mr P Ironside (sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr L Richter	Tony Hargreaves & Partners Solicitors

HER HONOUR:

1Jeffrey Kearney[1], on 11 December 2024 you were convicted of one charge of recklessly engaging in conduct which placed your victim in danger of serious injury.  Your victim was your wife of 29 years and the mother of your two adult sons.  This charge carries a maximum penalty of five years’ imprisonment.  You were acquitted of a more serious charge of reckless conduct endangering life, as well as a further charge of common law assault, which involved an allegation that you had punched your victim in the ear.

[1]        A pseudonym.

2The offending conduct, of which a majority of eleven of twelve jurors found you guilty, involved the allegation that, whilst your wife was in bed, you had pinned her down so that her head was hanging off the side of the bed and choked her by placing your arm across her neck.  The offending occurred in the very early hours of 30 December 2021.  In the conversation with police which was recorded on the body-worn camera footage of First Constable Lachlan Fraser shortly after the offending, your victim stated that the only thing that stopped you was that you felt blood as she believed that, as she was trying to fight you off, she made contact with you somewhere near your eye.[2]  She stated that she had tried to yell out to your sons who were elsewhere in the family home at the time, but you told her to shut up and no one would believe you.[3]

[2]Transcript of Exhibit “15” at the trial, pages 3-4.

[3]Ibid, page 6.

3In her evidence before the jury, your victim stated that this assault by you came in the context of an argument after you had arrived home from work the previous afternoon, during which you were critical of her and had abused her by calling her names, so she had ended up going to the bedroom and remaining there until you came in to the bedroom to go to sleep in the early hours of the morning.  She told the jury that, while she was trying to sleep, you engaged in conduct of turning up the television in the bedroom and also using the remote control to lift up her side of the bed, in circumstances where you knew that she had a back injury, and that this caused her pain.  She also alleged that you had punched her in the ear which was the subject of Charge 1 on the indictment, common law assault, of which you were acquitted.  Her evidence was that you called her a number of degrading and offensive names and were very angry and that, at some point, she pressed record on her mobile phone.  She stated that she did this because she knew something was going to happen and she was very scared.[4]

[4]T46.

4In her evidence, your victim stated that the assault of which you were convicted happened very fast.  She stated that she had ended up lying across the bed on her back with her head and neck hanging off the side of the bed and the rest of her body, from her shoulders down, on the bed.  She stated that you were sitting with your legs over her waist and had the inner part of your forearm across her neck and were using your body weight to lean down on her neck with your forearm.  She described her arms as having been “flailing everywhere” and that she was kicking and telling you to get off, but the more she wiggled the more she slid back off the bed and your forearm became tighter and you pushed harder and harder so that she really could not breathe.  She stated that she was trying to call out to one of your sons for assistance, but she could not get the words out and it was very hard to breathe and she felt like she was about to pass out.  It was at this stage that you apparently became aware of blood on your face and suddenly got off her and went to the bathroom, following which she took her pillow and a blanket and went into the living area to sleep.[5]

[5]T47-52.

5Evidence was led at the trial that at 1.58am on 30 December 2020, your victim had texted one of your sons stating that you had “got physical tonight” so she would be ringing police tomorrow to put in a report.[6]  Evidence was also tendered of the recording from your victim’s phone in which you were heard calling her “a fucking idiot” and mocking her when she said that she would call the police on you and get you the sack, to which you are heard to respond “Oh, that’s good.  Everyone knows me what the fuck”.  You went on to tell her to “get the fuck out of here" and call her a “freak”, a “useless fat cunt”, a “fucking idiot”, “crazy”, “psycho”, and “a fucking pig”.  Your victim is heard repeatedly telling you to “get off me” and, at one point in the recording, her breathing sounds heavy and laboured.  You respond to her concerns with abusive language and state “you’re the cunt drawing blood get fucked”.  When your victim responded “but fucking, like, you get me in a headlock.  You think you’re fucking at work.  Fuck off, fuck off”.  You are not heard to deny that allegation, but told her to get out and referred to her as a “cunt” and said “it’s your fat fucking arse fault”.  When she repeated “I’m the fucking one in the headlock”, you responded “where’s the blood, dipshit” and, again, called her an “idiot” and, also, a “spastic”.  When she again repeated “you came in here and you’re fucking choking me”,  you repeatedly told her to shut up and abused her and, again, called her a “spastic”.  When she stated “tomorrow I’m fucking calling the police, you can go to fucking jail” you responded with a mimicking crying noise “I’m going to jail oh – you’ll go to jail”, and went on to state “yeah, you will.  Fucken domestic violence bitch”.  When she repeated that you were the one who “did it”, you called her a “dumb arse”.  When she again said “you did it fucking to me, you’re the one hurting me … and fucking choking me and everything”, you responded “we’ll see about that.  You’re a liar.”  Your voice was very controlled and, to my ear, did not express any incredulity at her allegations.[7]

[6]Exhibit “2” at the trial.

[7]Exhibit “1” at the trial.

6At the trial your victim stated that she could not recall if she had any visible injuries from the incident.  She stated that she did have bruising on her arm, but could not say whether that was from the incident or from alleged earlier incidents which were the subject of other misconduct evidence not the subject of any charges.  She ultimately stated that the bruises on her arm would have been from her trying to get you off her, and that “it was 100 per cent self-defence”,[8] but, later, stated that she had had bruises lots of times but could not say exactly when the bruises which were the subject of photographs tendered as Exhibit “6” at the trial had happened, but they would have been from you grabbing her arms.[9]  One of your sons gave evidence of seeing purple finger marks on your victim’s neck, shortly afterwards, which was plainly not the case.  First Constable Fraser who had arrived at the family home at 2.50am stated that he had observed a mark on your victim’s right forearm and that, on her neck, was slight bruising.  He identified this as being the area where he is seen on his body-worn camera footage shining the torch onto what he believed were bruises on the right-hand side of her face and neck.  A paramedic, Casey Tobin, who attended the scene, had observed some bruising which she stated were finger marks on the inner arms of both of your victim’s arms, where she was allegedly held by the offender, she assumed.[10]  Ms Tobin did not note bruising to the neck or the ear (having noted some 20 minutes after her examination of your victim that she had stated that you had punched her to the right ear, rather than the left as alleged by your victim, which was the subject of Charge 1, common law assault, of which you were acquitted).

[8]T230.

[9]T251.

[10]T446.

7Senior Constable Emma Ferguson who arrived at the scene at 2.35am took a number of photographs which were tendered as Exhibit “7”.  Photographs 1-21 were taken soon after she arrived, and photographs 22-29 were taken later.  She stated that she was with the victim while she took a statement from her and took the second set of photographs because she could see the development of bruising and red marks over the victim’s face, neck and chest.[11] She marked the areas of discolouration which she observed.[12]

[11]T641.

[12]Exhibit “19” at the trial.

8Detective Senior Constable Jessie Godden had arrived at the home at 7.45am and had noticed bruising to the victim’s hands and arms, which she noted in her notes.  She did not recall observing any other injuries, but did not engage in detailed examination of the victim with respect to injuries.[13]

[13]T676-677.

9The victim was examined by Dr Rachel Marr, Forensic Physician, at 2.40pm on 31 December 2020.  She took a history from the victim, who denied any pre-existing injuries, except a chronic back issue for which she had had surgery.  She took 13 photographs which were tendered as Exhibit “10” at the trial.  She stated that the only injury she observed to the head and neck was redness to the right cheek.  She said the skin was swollen compared with the skin around it and there was redness from the corner of the mouth extending over approximately half the victim’s jaw on the right hand side.[14]  She stated the cluster of bruises on the inner right arm raised the possibility that those injuries were inflicted rather than accidental.[15]  Tendered as Exhibit “11” at the trial were markings on photographs by Dr Marr as to where she found bruising to the inner right upper arm, the right hand, the right forearm, the left upper arm and the left hand, as well as a diagram of where on the victim’s body she found bruises located, with the exception of the face.[16]

[14]T401.

[15]T403.

[16]T433.

10I here interpolate that Dr Marr gave evidence that neck compression of some ten seconds could lead to a loss of consciousness and that four to five minutes without oxygen could lead to brain death.[17]  Consistent with the jury verdict of not guilty on Charge 2, reckless conduct endangering life, I am satisfied that the jury accepted the latter evidence of Dr Marr and, hence, were not satisfied that the act of placing your arm against your victim’s neck and choking her was for a sufficient period of time to have placed her in danger of death.

[17]T420.

11You were interviewed by police on 30 December 2020, and in that Record of Interview denied the allegations made by your victim.  You asserted that your wife had been suffering deteriorating mental health in the months leading up to 30 December 2020 and that she would attack you and you would have to hold her arms to stop her.  You denied that you abused her either verbally or physically.  Your version of events was essentially that, on the afternoon prior to the alleged offending in the early hours of 30 December 2020, you had come home from work and found that she was “in one of her moods”.  You claimed that she had gone off to the bedroom and you had waited in the lounge room until about 2.00am until you decided to go to bed, thinking that she would be asleep by then.  You claimed that you went into the bedroom but she was not asleep and she had started to abuse you and punched you in the eye/head.  You claimed that it was in response to her aggression that you had grabbed her arms.  You denied that you had punched her, claiming that she was the aggressor and had punched you to the eye/head.  You denied that you had choked her and, at all times, maintained that you were trying to defend yourself against her attacks upon you.  This version of events was given by you on oath before the jury.

12In your Record of Interview you had denied ever calling your wife a bitch or a cunt or being verbally abusive towards her.  Under cross-examination you were evasive when asked whether you had called the victim all sorts of names in the bedroom on 30 December 2020.  You minimised what you had said by referring to it as “an exchange” of names or words.  It was only when the prosecutor took you one by one through the insulting epithets which were audible in the recording, tendered as Exhibit “1” at the trial, that you acknowledged that you could be heard saying them.  When pressed about your memory about using such denigrating and offensive language, you stated that you didn’t have a fully memory of the entire conversation.  You also stated that, when you were interviewed by police on 30 December 2020 and denied having used foul language in the bedroom, you didn’t remember all that detail at the time.[18]

[18]        T941-946.

13Whilst the jury were clearly not satisfied beyond reasonable doubt on the charge of common assault or on the more serious charge of reckless conduct endangering life, the verdict on Charge 3 makes it plain, as submitted by the prosecution at the plea hearing, that the jury accepted the victim’s evidence that she was choked by you whilst being held down on the bed.  Consistent with the jury’s verdict I am satisfied beyond reasonable doubt that the jury rejected your evidence that you were acting in self-defence by holding the victim to stop her attacking you, and also rejected your evidence that, following the departure of the victim from the bedroom, you had lain down on her side of the bed.  I here interpolate that there was evidence of blood found on the side of the bed consistent with where your victim had said you had had her held down with her head hanging over the side of the bed at the time she was flailing around when you were choking her and she made contact with your eye which apparently caused it to bleed.[19]

[19]At the trial, Dr Prakash gave evidence that he had examined the offence on 4 January 2021 and found right periorbital bruising and a non-conjunctival haemorrhage, together with an abrasion of the eye (T400).  Photographs taken by the offender of these injuries were tendered as Exhibit “22” at the trial.

14You are presently aged 57 years, having been born in February 1968.  You come before the Court with no prior criminal history.  At the time of offending, you were employed as a Senior Sergeant of Police with Victoria Police, having been a serving member for 32 years. 

15Evidence was called at the trial and also tendered at the plea hearing that, over the course of your career, you have received various awards and commendations.  Tendered as Exhibit “8” at the plea hearing were a number of certificates, letters, newspaper articles and awards/commendations spanning the years 1994 to 2017, recognising various aspects of your work with Victoria Police in a variety of your different roles.  These included, amongst other things, finding a lost child, supervising and managing a fatal house fire, and running an alcohol diversion program whilst in the role of Acting Inspector.  At the trial, Mr Bruce Kitchen, a retired Inspector who had been with Victoria Police for 44 years, and Ms Carole Williams, a retired police officer following 17 years of service, both spoke of the high calibre of your work as a police officer and stated that you were a caring person, who was very focussed on helping people.  Character references from both of those people were tendered as part of Exhibit “7” at the plea hearing.

16A further character reference was also tendered at the plea hearing from Mr John Bergin, a retired detective Senior Sergeant of Police, who had served with Victoria Police for 32 years and worked with you on many occasions.  He described you as a hardworking, honest, diligent and trustworthy member, whose ethical behaviour was exemplary.  He also stated that you had been involved in raising your two sons and in their education and sporting activities.  He stated that he had suffered from Post-Traumatic Stress symptoms and you had confided that you suffered from similar symptoms.  He expressed concern for you as you appeared to be depressed and to have limited support.  References were also tendered from your older sister, Petra Hallie[20] and her husband, Stephen Hallie[21], who described you as a caring and generous father and an honest and hardworking person.  Mr and Mrs Hallie and Mr Bergin expressed shock about the guilty verdict and noted your depression, with your sister describing you as “a broken man”, who was getting help through his counsellor and doctors.

[20]        A pseudonym.

[21]        A pseudonym.

17In a plea on your behalf by Mr Richter, the Court was told that, since this offending, you have been formally diagnosed and treated for Post-Traumatic Stress Disorder and a Major Depressive Disorder, although it was not submitted that either of these matters were causative of your offending, which you continue to deny.  They were relied upon as enlivening the application of principles five and six in R v Verdins (“Verdins”)[22] should the court consider a term of imprisonment to be an appropriate sentence.

[22] (2007) 16 VR 269.

18A number of reports were relied upon in relation to your psychological health.  According to reports from Colleen Knapp, psychologist, dated 10 October 2022 and 1 February 2025, you were stood down without pay by Victoria Police following  the allegations made by your victim.  You subsequently resigned.  It seems that preceding your wife’s complaint, you had been experiencing some issues at work relating to a complaint by yourself about sexual harassment by a female employee of Victoria Police, which you regarded as not having been dealt with satisfactorily, as well as allegations by you of bullying, which your counsel did not expand upon as he stated that you found it distressing. 

19In addition, it seems that over your many years of service as a police officer, you had been exposed to situations which had given rise to a Post-Traumatic Stress Disorder, which, as stated, was diagnosed subsequent to your leaving Victoria Police, and the subject of an ultimately successful Workcover claim.  In addition, you have been diagnosed with a Major Depressive Disorder. 

20In her first report dated 10 October 2022, the psychologist, Ms Knapp, stated that you had been referred by your general practitioner for counselling in relation to workplace stress and that you initially saw her on 25 January 2021.  In her subsequent report dated 1 February 2025, she stated that you had been referred for treatment for depression and anxiety in relation to “a family incident in late December 2020”.  Since the initial consultation with her on 25 January 2021, you have seen her for in excess of 100 sessions of counselling.  She stated that you were suffering from a severe, chronic, complex Post-Traumatic Stress Disorder, which developed in the context of your employment with Victoria Police and also a severe, Major Depressive Disorder and that your “condition and symptoms have been exacerbated by the incident on 30.12.2020 and the ongoing legal matters”.  She stated that you had seen Dr Kumar, psychiatrist, but remained very unwell with depressed mood and suicidal ideation.  She noted that you continue to assert your innocence and want to clear your name, which stops you from acting on the suicidal thoughts, but you report high levels of anxiety, agitation, flashbacks, hypervigilance, fatigue and frustration, as well as disturbing and distressing reminisces of the traumas to which you have been exposed, as well as what you allege to be the assault by your ex-wife.  She considered that the diagnosis of chronic Post-Traumatic Stress Disorder was permanent and that your Major Depressive Disorder was unlikely to resolve in the near future and your prognosis remained guarded.  She noted that you were taking medication to treat your Post-Traumatic Stress Disorder and to reduce nightmares, as well as medication for depression and to help you sleep.

21On 3 June 2021 you were examined by a psychiatrist, Dr Richard Prytula, in relation to your WorkCover claim.  In a report dated 10 June 2021 he stated:

“He outlines comprehensively bullying and harassment, workload issues, alleged sexual harassment and exposure to traumatic events resulting in development of post-traumatic stress disorder and a major depressive disorder, both of severe level of symptoms.”

His report does not detail anything about the allegations by your wife which resulted in you being charged.  Dr Prytula formed the view that:

“Based on the available information, the conditions are related to work.  He has no work capacity due to his severe symptoms.  With the recommended treatment, he should improve with further time”.[23]

He considered that you needed to see a psychologist weekly, and to be reviewed by a consultant psychiatrist, as your then medication was not effective.

[23]Exhibit “3” at the Plea hearing.

22By 18 June 2021 you had begun consulting Dr Kumar, psychiatrist and, thereafter, you saw him on 54 occasions up until the time that he prepared his report on 25 February 2025.  Essentially, Dr Kumar stated that you met the criteria for Post-Traumatic Stress Disorder and Major Depressive Disorder albeit that he did not elaborate in any detail about the reasons for them.  He altered the regime of medication for your mood and sleeping, but noted that, as at 13 February 2025, your mood was low, you remained anxious, had poor concentration and had ongoing regular flashbacks and nightmares and agitation in relation to seeing a police car or police station and remained hypervigilant, with ongoing sleep and appetite disturbance, low energy and low motivation.  However, he claimed that your judgement was not impaired.  He did not detail any history in relation to the offending of which the jury has found you guilty.  He had noted that you alleged that four days prior to the offending, on 26 December 2020, your wife had become enraged and assaulted you on numerous occasions to the face which resulted in bleeding.

23A subsequent report of Dr Kumar dated 25 March 2025 noted that you had been admitted to South Eastern Private Hospital under his care on 21 March 2025 due to you having intense suicidal ideation, attributable to the recent death of your dog after being struck by a car, and your inability to cope with court-related stressors.  He noted an increase in the frequency of flashbacks and nightmares.  In a later report dated 1 May 2025, he noted that you had been an inpatient from 21 March to 15 April 2025 and had been reviewed following discharge on 20 April 2025.  He noted that the admission had resulted in fewer nightmares and flashbacks, increased energy levels and motivation and no hypervigilance or suicidal thoughts.  A final report dated 7 May 2025 noted that your current mental state is stable, but the diagnosis of Post-Traumatic Stress Disorder and Major Depressive Disorder are severe and have considerable impact on your functioning and are permanent.  He noted that you remain on medication for nightmares, sleep and for depressive symptoms and had begun an outpatient group on health and wellbeing, with a proposal to undertake further outpatient group therapies in the future.[24]

[24]Dr Kumar’s various reports comprise Exhibit “4” at the Plea hearing.

24Also tendered at the plea hearing was a forensic psychological assessment report authored by Mr Patrick Newton dated 8 May 2025.[25]  Mr Newton had assessed you on two occasions (3 March and 22 April 2025) totalling approximately three hours.  He stated that, in the March consultation, you had been in a state of noteworthy emotional agitation and expressed strong resentment at your legal situation, the charges that had been levelled against you, the legal processes in which you had been involved and the outcome of the trial.  On psychometric testing he noted that validity scales suggested that you had minimised your strengths and likely emphasised your problems as part of a “cry for help” and the results showed a high level of distortion, including rigidity, low insight, and difficulty acknowledging personal flaws.  He noted that he was unable to interpret the results of administering the Traumatic Symptom Inventory because you reported such a large number of “atypical” and/or “bizarre” items which were very rarely seen in clinical patients.  On the second consultation in April 2025, following your inpatient admission, you were calmer, but the validity scale suggested defensiveness and likely under-reporting of symptoms, which he suggested may be due to shame, pride or a desire to appear more stable.

[25]Exhibit “5” at the Plea hearing.

25In any event, Mr Newton concluded that the results were indicative of a persistent but marked psychological disturbance.  He concluded that you meet the DSM-5 criteria for Post-Traumatic Stress Disorder, which was chronic and of a moderate to severe level, as well as a Major Depressive Disorder of moderate severity.  He noted that you continue to maintain your innocence, alleging that you, not your wife, were the victim of family violence, that you were not guilty of the offending, and that you attributed the guilty verdict to irregularities in the trial, rather than your own conduct.  He considered that your Post-Traumatic Stress Disorder was deeply entrenched and resistant to standard interventions.  He stated the root trauma was likely cumulative exposure to occupational trauma, “although it was his afront at the manner in which his case of sexual harassment was managed which acted as the ultimate single ‘triggering’ event for his withdrawal from the workforce”.  He noted ongoing depressive symptoms and social withdrawal and suicidal ideation, which had escalated to the point that an impatient admission was required.  He considered that you were vulnerable to relapse and that this risk was compounded by your social isolation and rigid personality style, which may inhibit help-seeking.  He considered that you still required intensive treatment.

26Mr Newton noted that, despite consistent treatment, both the Post-Traumatic Stress Disorder and Major Depressive Disorder remain unresolved.  He opined that personality traits, specifically obsessive-compulsive rigidity and deeply internalised moral framework, likely prolong these conditions by fostering rumination and an inflexible narrative of victimhood.  He assessed you as having a highly rigid, ethically scrupulous and socially inflexible personality style which may be alienating in a social context, and having an inability to accept differing view points, which contributes to interpersonal conflict.  Mr Newton stated that you continued to maintain that your marriage had deteriorated due to your victim’s psychological problems, as she was not compliant with medication and was emotionally volatile and physically violent.  He considered that your personality and emotional instability may impair social judgement and exacerbate conflict.  He noted that the guilty verdict had deepened your sense of hopelessness and reinforced your narrative of victimisation and likely amplified suicidal ideation and emotional dysregulation.  He considered that your psychological conditions may have compromised your judgement and emotional control, but there was no definitive causal link that could be drawn between this and your denial of the offence and there was a lack of contemporaneous mental health data.

27Mr Newton opined that incarceration would likely trigger significant mental health deterioration.  Ms Knapp opined that even media publication of your name would result in a high risk of self-harm and Dr Kumar stated “I believe that if Jeffrey is sentenced (my emphasis) this would cause a further deterioration in his mental health and would probably increase his risk of suicide”.  The latter is a somewhat unusual statement in that a court clearly has no option but to sentence an offender when a jury has found that person guilty of an offence.

28On your behalf, Mr Richter submitted that the gravity of the offending of which the jury had found you guilty was towards the lower end of the scale and that the Court should take into account that you had given a great deal of service to the Victorian community by way of your police work which had resulted in debilitating symptoms of Post-Traumatic Stress Disorder and a Major Depressive Disorder.  He also relied upon delay in that, although you were interviewed on 30 December 2020, you were not charged until 30 March 2022.  His ultimate submission was that, given your prior good character and lack of any criminal history, together with your mental health concerns, the offence could be dealt with by way of a substantial financial penalty.

29On behalf of the prosecution, Ms Thomas submitted that the submission made on your behalf in relation to delay should be ameliorated by the fact that the charges against you had been listed for hearing in the summary stream of the Magistrates’ Court.  However, on 9 September 2022, your current solicitors requested that a second mention for a contest hearing should become a filing hearing, and it was at your instigation that the matter came to be listed for trial in the County Court.

30Ms Thomas submitted that the offending of which the jury has found you guilty is not towards the lower end but rather towards the mid-range of offending, given that it happened in the context of significant verbal abuse and cruelty, which can be heard on the telephone recording made by the victim.  She noted that you had denied in your record of interview that you had engaged in any such denigrating name-calling and, during the trial whilst giving evidence on oath, you stated that you could not remember such verbal abuse by you, even though it was clear for all to hear that you had in fact uttered vile and denigrating words towards your victim.  Further, it was plain that this was a distressing and frightening assault.  The jury had accepted that you had held her down on the bed with her head hanging off the side and your arm across her throat, and her heavy breathing could be heard on the recording made by your victim on her telephone.  Moreover, there was medical evidence as to the dangers of attempted strangulation and, under cross-examination, you had confirmed that you were aware of such dangers.  Further, immediately after the offending, you had engaged in “gaslighting” by sending a text message to one of your sons, stating that your victim was having a mental health breakdown and to leave her alone at the moment as she is too violent.[26]  Also, you had told the jury that your victim had significant mental health issues and had been on anti-psychotic medication, Zoloft, which is an antidepressant, and the evidence from your wife was that she had been on it for a short time following her back injury and surgery quite some time ago.

[26]        Exhibit “9” at the trial.

31Ms Thomas reiterated the theme with which she had gone to the jury, namely, that the attitude of the “public Jeffrey Kearney” seemed to be very different to the attitude of the “private Jeffrey Kearney”, who demonstrated such cruel and demeaning behaviour towards his own wife, as evident on the recording, Exhibit “1”.  She submitted that you had demonstrated a complete inability to accept responsibility for your actions, as evident in Mr Newton’s report.  She submitted that what you had sought to do was to rely upon good character evidence in an attempt to impugn the jury’s verdict.  She urged that you plainly had poor insight and your repeated denials and attacks on your wife’s character and on the jury verdict demonstrate a serious aspect to your offending.  She noted that family violence is a significant problem in the community and the context on the night of the offending was plainly one of family violence, which would have been terrifying for your wife of 29 years.  She submitted that your offending called for appropriate punishment such that a financial penalty was not an appropriate sentencing disposition, but conceded that a Community Correction Order was within range and the latter would allow the Court to mandate that you undergo family violence/anger management training albeit that whether or not you had a capacity to perform unpaid community work would be a matter for the Office of Corrections at the relevant time.

32It is true that there has been delay in this matter.  You were not charged until 30 March 2022, 15 months after the offending and your record of interview on 30 December 2020.  The trial ultimately took place in November and December 2024, four years after the offending.  Although the delay was in part due to the matter being transferred out of the summary stream of cases in the Magistrates’ Court upon you electing to have the matter heard before a jury in this Court, I do not consider that a person exercising his right to have a charge heard before a jury should mitigate the impact of delay.  Accordingly, in sentencing you I do take into account that this matter has been hanging over your head for some time and, plainly, there is evidence that you have been suffering poor mental health during that time.

33As far as the offending itself is concerned, I make it plain that I take no account of your victim’s evidence concerning other physical or verbal abuse by you on earlier occasions, which were not the subject of any charge.  However, I am satisfied beyond reasonable doubt that the offending on the night of 30 December 2020 did occur in a context of family violence in the sense that you entered the bedroom, knowing that your victim was there endeavouring to go to sleep, and you treated her with contempt and cruelty by turning up the sound on the television and, knowing that she had a longstanding problem with a back injury, moving her side of the bed up and down in such a way as to cause her discomfort and engaged in calling her the insulting names to which I have earlier referred.  It would seem, on your own evidence, that this was something of a sad and dysfunctional family situation by 30 December 2020.  In your record of interview, you stated that you did not sit down to eat meals as a family, that “everyone (would) just grab a plate and go and sit down and whatever and just do what they gotta do”.[27]Under cross-examination, you confirmed that this was the case and it was not unusual for your sons to spend much of their time in their bedroom and for you to be alone in the loungeroom, whilst your wife was in the bedroom.  You also stated that you were working nightshift over Christmas 2020 and did not believe that there was any Christmas celebration, and did not know whether you had spoken to your victim and sons after your Christmas shift about anything that they may have done to celebrate Christmas.[28] 

[27]Exhibit “20” at the trial, questions and answers 255-256.

[28]T874-875.

34There is no victim impact statement, but it is plain from your victim’s evidence that she found your violent conduct in holding her down as her head was dangling off the side of the bed with your arm pressed against her neck to be terrifying and she had trouble breathing.  It is disgraceful, grossly disrespectful and humiliating conduct.  It is appalling that such conduct should occur to a person in her own bed in her own home by her own husband.  It is concerning that a police officer, whom one of your character witnesses described as having shown compassion and care to the victims of family violence[29] and who admitted that he knew the dangers of attempted strangulation, should have committed such an assault and then, when your victim threatened to report you to the police, called her “a domestic violence bitch” and mocked her when she said she would call the police, arrogantly stating that you were “oh so scared” and stating that “everyone knows me”.[30]  To follow this up by texting one of your sons that your victim was having a “mental breakdown” demonstrates an attitude of cunning manipulation and disregard for your wife of 29 years.  This conduct is a stark contrast to the picture of the patient, considerate and caring husband which you painted of yourself in your Record of Interview.

[29]        Evidence of Mr Bruce Kitchen at trial, T1013-1014.

[30]Exhibit “1” at trial.

35There has been a very worrying increase in assaults in the context of domestic violence in recent years.  Over the last 10 years, the Victorian Court of Appeal has emphasised that the criminal law now gives increased recognition to the devastating effects of violence perpetrated upon victims, mostly women, by their partners.  It has made unequivocal statements about the importance of emphasising general deterrence and appropriate punishment in sentencing for family violence offences, the need to condemn such offending as utterly abhorrent and unacceptable, and to acknowledge that the harm that it inflicts is beyond physical injury because it produces fear in victims and robs them of capacity and agency, and engenders shame.[31]

[31]See Skeates (a pseudonym) v The King [2023] VSCA 226, pages 10-12, paragraphs 55-65.

36It is noteworthy that, since the date of your offending, community concern about circumstances of non-fatal strangulation in a family violence context has caused parliament to amend the Crimes Act 1958 to add two new offences involving non-fatal strangulation, one which involves intentionally causing injury and the other which does not.[32] The second reading speech for the bill introducing sections 34AD and 34AE noted that “non-fatal strangulation is a particularly dangerous and insidious form of family violence” and the need for a stand-alone offence to appropriately respond to this serious and unique risk posed by family violence offenders who use non-fatal strangulation as a means of terror and control. In particular, it was noted in relation to s 34AE, which does not require proof of injury, that:

“The unique nature of non-fatal strangulation means it often leaves no visible signs of physical injury, or injuries may only become evident weeks or months after the offending takes place.  Historically, this has made prosecuting non-fatal strangulation challenging, with prosecutors resorting to charging offenders with common assault to get a conviction.  Common assault only attracts a maximum penalty of three months, which is inadequate for such serious offending.”[33]

[32]Crimes Amendment (Non-fatal Strangulation) Act 2023, s 34AD and s 34AE.

[33]Hansard, 16 November 2023, pages 4026-4029.

37Plainly, these legislative amendments postdate your offending, but they serve to indicate the very real concern about family violence of this type and to reinforce the sentencing considerations which have been repeatedly emphasised by the Court of Appeal, particularly over the last decade.  I place the gravity of your offending to be at the mid-level of seriousness, particularly because of the vulnerability of your victim in her own bed in her own home, the disparity in strength and fitness between you and her, and the very distressing nature of attempted strangulation which caused her to have difficulty breathing and talking.  I assess your moral culpability for it to be high and have noted your arrogant and demeaning attitude towards your wife and your repeated attempts to make her appear responsible through painting a false picture of her having serious mental health issues.  Accordingly, the predominant sentencing considerations must be denunciation, general deterrence and appropriate punishment.

38In sentencing you, I take into account your prior good character and, in particular, your long service with Victoria Police, together with your mental health conditions by way of Complex Post-Traumatic Stress Disorder and Major Depressive Disorder, as well as the factor of delay.  Notwithstanding the seriousness of the offending, these mitigatory factors cause me to conclude that the sentence of last resort, imprisonment, is not warranted in your case.  However, you have shown no remorse in relation to the conduct of which the jury has found you guilty and continue to assert that your victim was the aggressor and that she has significant mental health issues.  There was no evidence about this other than your assertion.

39When your victim gave evidence at the trial, under cross-examination, she stated that she had suffered a back injury in a car accident when she was about seven and a half months pregnant in the early 2000s and suffered an exacerbation of that injury in 2017 and 2018, which resulted in her having two surgeries to her back in February and March 2019.  She stated that the only occasion when she had seen a psychologist was years ago in relation to the previous injury and she believed it was in relation to her trying to get back to work.[34]  She stated that she was still taking prescription medication by way of Panadeine Forte and also a sleeping tablet to deal with her back pain,[35] but denied that she was prone to outbursts of aggression or that you had told her that she needed to get mental health assistance.  Rather, she stated that, for a long time, she had told you that you needed to get help with your mental health.[36]  From the psychological material which has been tendered at the plea hearing, it would appear that you did need mental health assistance and had very little insight into that need.  However, as previously stated, it has not been argued on your behalf that any mental health condition was causative of your offending, which you continue to deny.  I accept the prosecution submission that very soon after your offending, your text to your son was a very early attempt by you to deflect blame onto your victim and that theme was very evident in your record of interview and in your sworn evidence before the jury.  You continued to blame your victim when you saw Mr Newton, to whom you gave a history that your victim “had been diagnosed with a range of mental-health problems (reportedly including mood disturbance and a personality disorder) and that she had refused to continue with medical treatment for these.”

[34]T167-168.

[35]T170.

[36]T170-172.

40I note that Mr Newton identified a number of factors in your psychological makeup which makes treatment of your Post-Traumatic Stress Disorder and Depression difficult.  This includes a rigid, morally inflexible personality style.  Essentially, he stated that, despite consistent treatment, both conditions remain unresolved.  Personality traits, specifically obsessive-compulsive rigidity and a deeply internalised moral framework, likely prolong these conditions by fostering rumination and an inflexible narrative of victimhood.

41Mr Newton stated that your conditions of Post-Traumatic Stress Disorder and Major Depressive Disorder have persisted despite treatment.  He stated:

“Among the factors preventing resolution of his symptoms are his entrenched sense of injustice regarding the way his concerns were managed during his time as a serving police officer, and his persisting disquiet with regard to the conduct and outcome of his trial.  The former reinforces his rumination on the negative events experienced during his police career – intensifying his trauma; the latter reinforces his perception of himself as powerless and his hopelessness – hence exacerbating his depression and inspiring his rumination on suicidal themes.  Each of these factors reflects the operation of broader personality vulnerabilities resulting  from obsessive-compulsive personality traits.”[37]

He went on to note:

“Mr Kearney’s ethical reasoning and social judgment are affected by his maladaptive personality traits.  He has a strong sense of moral rectitude and a deep commitment to behaving properly.  Indeed, the indications are that Mr Kearney can be rigid and unyielding in his application of such principles and that he struggles to understand how others could reach different conclusions to those which he considers to be self-evident.  While such stringency gives his character clear definition, and while it may be a strength in contexts such as law enforcement where diligent adherence to standards is prized, it is also likely that Mr Kearney is perceived by others in the general community as being authoritarian, overly scrupulous or even sanctimonious.  Such features are likely to provide a fertile ground for conflict with others to develop and to hinder its effective resolution.”[38]

He opined that such traits “are often a catalyst of conflict, misunderstanding and interpersonal isolation.”[39]He further stated:

“He has been prone to be irascible and irritable as a result of experiences of trauma and to direct his resentment towards those whom he considers are really responsible for his problems.  His tendency to perceive himself as the ‘victim’ of such treatment has interfered with his ability to think clearly about his prosecution and continues to cloud his judgment with regard to his legal matters.”[40]

[37]Exhibit “5” at the Plea hearing, page 10, paragraph 47.

[38]Ibid, page 11, paragraph 51.

[39]Ibid, page 14, paragraph 18.

[40]Ibid, page 17, paragraph 66.

42I accept Mr Newton’s opinion.  I am satisfied that you lack insight concerning your own rigid personality style and its impact upon others.  It appears that you have become immersed in your own sense of victimhood.  You are now quite isolated.  I agree with Mr Newton that your obsessive rumination on perceived wrongs that have been visited upon you militates against the success of psychological treatment for your mental conditions.  For these reasons, it is difficult for me to assess your prospects of rehabilitation, particularly given your lack of acknowledgement of the offending for which the jury has found you guilty.  Unless you gain some realistic insight into you own personality makeup, I doubt that your Post-Traumatic Stress Disorder and Depression are likely to greatly improve in the foreseeable future.

43As previously stated, your mental health considerations were not argued by your counsel to provide a nexus to your offending such as to attract principles 1 to 4 in Verdins, and I have already acknowledged the application of principles 5 and 6 and articulated that I do not consider a sentence of imprisonment warranted.  However, in all of the circumstances, I do not consider that a fine as advocated by your counsel is appropriate to reflect the seriousness of the offending.

44I have determined that a Community Correction Order is the appropriate disposition as it is plain that you are in need of ongoing psychiatric and psychological support, preferably from your current treaters. However, I also consider that you should undergo rehabilitative treatment programs in relation to anger management and family violence education. In the light of the material before me, I see little point in ordering that you undertake unpaid community work. Accordingly, I do not propose to order any such condition, however, I consider it appropriate to attach a residual condition pursuant to s 48(1) of the Sentencing Act requiring you to pay an amount of money to an organisation which supports victims of family violence and that is proposed to be in the sum of $5,000.

45On Charge 3, reckless conduct placing another in danger of serious injury, you are convicted and sentenced to undertake a Community Correction Order for a period of 18 months.

46The following terms are attached to the Order:

(a)   you must no commit whether in or outside Victoria during the period of the Order an offence punishable by imprisonment;

(b)   you must comply with any obligation or requirement prescribed by the Regulations;

(c)   you must report to and receive visits from the Secretary during the period of the Order;

(d)   you must report to the Community Correction Centre specified in the Order within two clear working days after the Order coming into force;

(e)   you must notify the Secretary of any change of address or employment within two clear working days after the change;

(f)    you must not leave Victoria except with the permission either generally or in relation to a particular case of the Secretary;

(g)   you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the Order.

In addition to those terms, the following conditions are attached to the Order:

(i)You are required to undergo mental health assessment and treatment including psychological and psychiatric treatment to address your conditions of Post-Traumatic Stress Disorder and Major Depressive Disorder.  This should preferably be achieved by you continuing to attend your treating psychologist, Ms Colleen Knapp, and your treating psychiatrist, Dr Vinay Kumar.

(ii)You are required to undertake programs addressing factors relating to your offending, including an anger management program and a family violence program.

(iii)You are required to pay the sum of $5,000.00 by registered post to Safe Steps, Reply Paid 90113, GPO Box 4396, Melbourne, Victoria, 3001 by 1 December 2025 and to forward proof of such payment to the Registry of the County Court by 8 December 2025.

47Mr Kearney, I am unable to make a Community Correction Order as I have just articulated unless you agree to it.  You also need to understand that in the event that you contravene such Order you will have committed an offence which carries a maximum penalty of three months’ imprisonment.  Should that occur, you may be returned to the Court and the Community Correction Order made may be set aside and an alternative sentencing disposition, including imprisonment, could be made.

48Do you understand what I have just said?

49Offender:  Yes, Your Honour.

50Are you prepared to sign the Community Correction Order with the terms and conditions which I have just articulated and to comply with those terms and conditions?

51Offender: Yes, Your Honour.

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