DPP v Gelman [2025] VCC 948

1. Family violence is serious offending. Your violence towards Ms Bayliss subjected her to physical injury and the fear of this being repeated or escalated. She was not safe from you in her own home or in her car, or even when driving away from her home.
2. The offence of aggravated burglary by breaking into her home and attempting to enter the bedroom by kicking and banging on the door, while threatening to kill Ms Bayliss and Mr Fry, was a serious form of this offence.
3. Even though you left of your own accord, you were not to be outdone and reappeared later that day to further confront, assault and terrorise Ms Bayliss in the garage. You did this even though you had had time to reflect on your earlier behaviour. The following day you had still not given up and told your parents you were going to find Mr Fry, whereupon you called Ms Bayliss and told her there were people coming for her.
4. You told the police you were angry when you confronted Ms Bayliss in her car and it is clear that you exercised no personal constraint, appearing to lack any empathy for your victim, and acting out of a sense of entitlement and anger.
5. It was submitted by Ms Morgan on your behalf that the gravity should be assessed against the background of the relationship between you and

Ms Bayliss, which did not end in November 2022 when the interim intervention order was made. That might explain why the final order was not made until

13 July 2023, which is an unusually long delay between interim and final order. 6. Ms Morgan explained that although you and Ms Bayliss ceased living together, you continued to meet, to socialise together, and went on a two-week holiday overseas. It appears that the romantic attachment continued, at least from your point of view, until October 2023. However, the making of the final intervention order in July 2023 would indicate that Ms Bayliss' intention to regard the relationship as being over by then, consistent with her evidence at the committal. 7. Ms Morgan submitted that the seriousness of the threats and the contexts of the trespass should be read down because of the lack of immediacy, but my view is that any such reduced weight must be slight. Ms Morgan also submitted that your knowledge that Mr Fry was also in the apartment at the time you threatened to kill them both, ameliorated somewhat the fear

Ms Bayliss, as the primary victim, might have felt, thus reducing the gravity of that offending. Again, the reduction, while recognised, is slight. 8. As to the two summary offences of failing to stop and failing to assist after the collision involving Ms Bayliss' car, I agree with Ms Morgan's submission that they have an inherent ambiguity because if you had stopped, you would have been in further breach of the intervention order and would have continued to place Ms Bayliss in fear. In the circumstances I place little weight upon them. 9. The objective seriousness of the overall offending is reinforced by the fact that you have previous convictions for similar offending including two sets of offences which led you to serve two prison sentences, one for six months in 2021 and one for four months in 2020. Other offending resulted in fines or community correction orders. 10. Although I am sentencing you only for the offending in late 2022 and 2023 involving Ms Bayliss and Mr Fry, I take into account that this offending is in part a repetition of previous behaviour; indeed, an escalation of it, and indicates a poor prognosis for rehabilitation. 11. You were assessed recently by a forensic and clinical psychologist,

Ms Andrea McNeill. The earlier plea hearing was adjourned part heard for this assessment to be done and when the report was provided both parties filed further plea submissions. 12. The prosecution response to further submissions by Ms Morgan and the report of Ms McNeill, are that the seriousness of the offending remains unchanged. It was not an isolated incident but there were multiple instances over a year. The persistent breach of the intervention order included serious breaches on three consecutive days, which was a blatant breach of the court orders. 13. Ms Paganis, for the prosecution, submitted that this places the offending at the upper range of seriousness, and I agree with that assessment.

1. You are now aged 43 and you are the eldest of your parents' children, with a younger brother and sister. Your parents are from Ukraine and left there when it was still under the soviet regime, to go to Israel in 1990. You were born in Israel the following year.
2. Your siblings are both highly qualified and have good jobs. You were diagnosed with ADHD in Grade 3 at primary school in Israel and had medication prescribed. This was ceased when the side effects became difficult and since then you have not been medicated for that condition.
3. In 2004 the family came to Australia. You were aged 12 and spoke limited English, although you did speak Russian, Hebrew and Arabic. You went straight into Year 7 at MacKinnon Secondary College and struggled there, experiencing bullying because of your different background and limited English, exacerbated by your ADHD causing interpersonal difficulties.
4. You left school at the end of Year 10 and persevered at TAFE in the VCAL program. After 18 months you joined the workforce, starting in warehouse work.
5. At this time you began using drugs with friends, primarily methylamphetamine which helped your ADHD symptoms, but it also led to an increase in behaviour problems and contact with the police, resulting in criminal charges.
6. It also caused significant conflict with your family and resulted in police applying for intervention orders on behalf of your parents and siblings. You breached those orders resulting in being charged and appearing in court.
7. In 2019 you began a plumbing apprenticeship, but the company shut down during COVID. Recently you recommenced that apprenticeship with another company and your employer had been supporting you during your early court hearings. However, in order to continue with that apprenticeship, you would be required to recommence by September this year.
8. This background demonstrates that your employment history is very good. Indeed, at the time of your arrest you were working at two jobs, the apprenticeship and in a warehouse, as the apprenticeship did not pay well.
9. You have remained abstinent of methylamphetamine since late 2022, having ceased when the intervention order was made. But in late 2023 you were taking steroids which may have influenced your offending behaviour. However, you have remained drug free in custody.
10. You are willing to undertake, once you are sentenced, courses or programs in prison to meet parole requirements such as a violent offender's course. Ms McNeill, the psychologist who assessed you recently, suggested you take part in a program available in custody called Building Better Relationships.
11. You have already completed several programs in prison but only very recently, since the previous plea hearing.
12. You hope when you are released to live with your family, to obtain work, and ultimately to travel.

1. You have been in custody since your arrest on 5 November 2023. Bail was refused after the committal on 18 April 2024. Therefore, you have been in pre-sentence detention for 608 days, not including today. I declare that time to be reckoned as already served and I shall note it on the court record.
2. There has been some delay caused by the need for discussions about the facts and appropriate charges. It was never your intention for the case to go to trial, as indicated by your admissions. Although some credit is due for them, they were at the time accompanied by efforts at minimising the seriousness and of reducing your own responsibility.
3. Ms Morgan conceded that a head sentence and non‑parole period is appropriate on the basis of the aggravated burglary. She submitted that totality is of significant importance and that your overall criminality should determine the appropriate sentence, rather than placing chief importance on the charge of aggravated burglary.
4. A further significant matter is the role of specific deterrence. Ms Morgan submitted that your previous time in custody did not have a full deterrent effect on you, but this time, the almost two years you have spent in custody has done so. In particular, you know that you will lose your chance to complete your apprenticeship.
5. General deterrence is also of significant importance in a case involving family violence, which is serious offending perpetrated against a victim, usually in their own home, as in this case, who lacks power and opportunity to resist.
6. As to specific deterrence, it was submitted that you have difficulty regulating your emotions when distressed and you had very little perspective as to your conduct, such as not being able to understand Ms Bayliss' point of view. Those issues were explored in some detail in the report provided by

Ms McNeill. 7. Your criminal history is also significant in terms of your escalating violence and the likelihood that your prospects for rehabilitation are guarded at best. You have served several short prison sentences in the past and have had Community Correction Orders imposed, sometimes in combination with prison. I have been provided with summaries of the offending which includes accounts of extreme violence against former partners, such as attempted strangulation on two occasions. 8. Of course you are not being punished again for those matters but they are taken into account as relevant to your future risk and possible rehabilitation. 9. Following your assessment by Ms McNeill on 19 June 2025 and the provision of her report, Ms Morgan has submitted that limbs 1 and 3 in the case of Verdins apply in this case, to reduce your moral culpability to some degree. 10. Limb 1 refers to punishment being affected by the conditions suffered by the offender where moral culpability is considered to be reduced. Limb 3 permits the moderation or elimination of general deterrence as a sentencing consideration where the offender's mental capacity is affected by the condition suffered at the time of the offending, or at the date of sentence, or both. 11. There is agreement by both parties as to the application of limb 3, that there should be some modest reduction in the sentence on that basis. Ms McNeill's report addressed this matter, and I turn to it now in that regard. 12. Ms McNeill stated in her report that you did not minimise your criminal conduct or try to blame anyone else, and you did accept full responsibility for your conduct. That is an improvement since your initial response. Ms McNeill noted that you have some developing insight into and awareness of what she described as 'severe emotional dysregulation' when you were facing interpersonal rejection. 13. She said that you also accept that you need to engage in psychological therapy. 14. Her opinion was a diagnosis of anti-social personality disorder displaying a pervasive pattern of disregard for, and violation of, the rights of others. She also diagnosed borderline personality disorder following severe familial and interpersonal conflict, resulting in you becoming emotionally dysregulated during conflict, due to fear of rejection, abandonment and being devalued and misunderstood. She put this in blunt clinical terms that '...without adoration you have a minimal sense of yourself'.[3] 15. While noting your use of anabolic steroids at the time of the offending, which could have contributed to your aggression, Ms McNeill referred to your criminal record as indicating that the current offending is not new behaviour, but there is a strong pattern of inability to concede the cessation of relationships with intimate partners and family members. This observation indicates the high degree of your culpability, which is only slightly reduced by your mental health conditions. 16. To be more specific about that, I note that Ms McNeill went on to say that your diagnosed conditions are plausible causal factors contributing to your failure to accept the relationship breakdowns. She referred again to the emotional dysregulation you experience at such times, resulting in you not thinking clearly.[4] 17. You told Ms McNeill that you had become fixated on Ms Bayliss and were unable to let go or walk away. This seems consistent with your behaviour towards former partners in the past. 18. The prosecution response to the further submissions by Ms Morgan and the report of Ms McNeill, are that the seriousness of the offending remains unchanged. It was not an isolated incident, as there were multiple instances over a year. The persistent breach of the intervention order included serious breaches on three consecutive days, which was a blatant breach of the court orders. 19. I consider that your condition and state of mind at the time does allow for a modest reduction in your criminal culpability and a corresponding minor reduction in the appropriate sentence. 20. Your family remains supportive of you, and the plan is that you will live with them when you are released and they will help you move back into the community. I understand that you wish to show your family that you can make progress and live a properly functioning life. Your hope is that in the future you will be able to manage your emotions and disappointments and one day have an enduring relationship. 21. One part of realising that hope will be abstaining from drug use, in particular the steroids that have become important to you. You have already commenced that progress. A further essential part of your rehabilitation will be to understand that a person, with or without any relationship with you, has a right to dignity and independence in their life, free of any coercion or physical pressure. While you will continue to remain in custody for some time yet, that time can be put to good use by engaging in suitable programs to enhance your understanding of these important life issues.

1. Mr Gelman, I sentence you to the following terms of imprisonment.
2. For recklessly cause injury, 12 months.
3. For making a threat to inflict serious injury, nine months.
4. For aggravated burglary, three years.
5. For making a threat to kill, 12 months.
6. For persistent contravention of a family violence intervention order, 12 months.
7. Turning now to the summary offences.
8. For each of the two charges of unlawful assault, one month.
9. For failing to render assistance after a motor vehicle accident and for failing to stop, each charge is found proved and dismissed.
10. For trespass, four months' imprisonment.
11. The sentence for aggravated burglary is the base sentence for purposes of cumulation. I order that six months of each of the sentences for Charge 1 and Charge 5 be served in cumulation on the base sentence.
12. Two months of the sentence for Charge 2, three months of the sentence for Charge 4, and one month of the sentence for summary Charge 24 are also to be served in cumulation. This results in a total effective sentence of four years and six months.
13. I order that you serve three years before being eligible for parole.
14. If you had pleaded not guilty to these charges, I would have sentenced you to five years' imprisonment with a non-parole period of four years.
15. Just to clarify, I have already declared 608 days of pre-sentence detention to be reckoned as already served.
16. Mr Moschonas, are there any other matters that I have neglected or omitted?
17. MR MOSCHONAS: No, Your Honour, there isn't, no.
18. HER HONOUR: Thank you. Ms Morgan, anything further?
19. MS MORGAN: Your Honour, could I just check those figures?
20. HER HONOUR: Certainly.
21. MS MORGAN: So in relation to recklessly cause injury, 12 months, six months' cumulated. Threat to inflict serious injury, nine months with two months' cumulated. Aggravated burglary, three years as the base.
22. HER HONOUR: Yes.
23. MS MORGAN: Threat to kill, 12 months with three months' cumulation.
24. HER HONOUR: Perhaps I'll read them out slowly again.
25. MS MORGAN: If you would, I'm so sorry, Your Honour.
26. HER HONOUR: I will, yes, all right. My associate has just told me that she has emailed those sections to you.
27. MS MORGAN: Thank you.
28. HER HONOUR: So you will have those there.
29. MS MORGAN: No need to read them out again then, Your Honour, so I appreciate it.
30. HER HONOUR: No, no need to read them out. All right, thank you,

[3] Report of Andrea McNeill darted 27 June 2025 at [159] - [161]