District Court New South Wales Medium Neutral Citation: R v Delinicolis & Dellosa [2021] NSWDC 684 Hearing dates: 10 December 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Jurisdiction: Criminal Before: Berman SC ADCJ Decision: Delinicolis – Convicted - sentenced to imprisonment for a period of 2 years. Order that sentence to be served by means of an Intensive Corrections Order with offender to perform 400 hours of community service Dellosa – Convicted - sentenced to be subject of a Community Corrections Order with offender to perform 300 hours of community service Catchwords: CRIMINAL LAW – Sentence – Misconduct in a public office – Misuse of positions – Using position as police officers to pick up women for sexual purposes – Breach of trust – Damage to Police Force reputation - Not isolated offending - Parity Cases Cited: Blackstock v R [2013] NSWCCA 172 R v Obeid (No12) [2016] NSWSC 1815 Category: Sentence Parties: The Crown James Delinicolis - Offender Angelo Franco Dellosa- Offender Representation: Counsel: K Prince – Crown P Strickland SC – Offender Delinicolis M Cunneen SC – Offender Dellosa Solicitors: Director of Public Prosecutions – Crown Bilias & Associates – Offender Delinicolis Longton Legal – Offender Dellosa File Number(s): 2020/228067 & 2020/228071 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant Judgment 1. The two offenders appearing for sentence today, James Delinicolis and Angelo Dellosa have each pleaded guilty to the common law offence of Misconduct in Public Office. 2. That offence is committed when public officials, in the course of or in relation to their public office, wilfully and intentionally culpably misconduct themselves. In the present case the two offenders were police officers who admit that they culpably misconducted themselves by misusing their positions as police officers to meet and then have consensual sexual intercourse with women, in particular a schoolgirl who I will call Violet, although that is of course a pseudonym. 3. Misconduct for that purpose is unusual. This makes other cases where sentences have been imposed for this offence of less assistance. Nor is there an analogous statutory offence which would, if it existed, have a maximum penalty which would help in determining the sentence to impose in the present case. Further adding to the difficult nature of this sentencing exercise is the circumstance that some of the conduct of the two officers which many people would find distasteful, occurred as part of consensual sexual activity between Violet and the two offenders. The statement of facts tendered by the Crown had explicit details of who did what to whom during the consensual sexual encounter. These details are unnecessary, because it must be recognised that Violet, who was 17 years old, was perfectly capable of consenting to the sexual activity which took place. There was nothing illegal in what occurred. I will return to this topic later. 4. I also have to recognise that while the focus of these proceedings has been on what occurred between the offenders and Violet, this was not unusual behaviour for the offenders. The two of them were speaking to numerous women while on duty, and trying to pick them up for sexual relationships, between May 2019 and May 2020. They handed out their phone numbers to females in whom they were interested. Police investigating this matter have identified four women over the age of 18 who were approached by Delinicolis and Dellosa and a further five women by Dellosa alone. The offenders do not get the benefit of being sentenced on the basis it was an isolated incident for them to pick up someone for sexual purposes while working as police officers. 5. Thus, what occurred on 11 March 2020, was not unusual – at least for the two offenders. On that day they were working as police officers attached to the Police Transport Command. Their duties included ensuring the safety of passengers using public transport. As part of that role, at 2:45 pm that day Delinicolis was with three other uniformed police officers at the bus stop at Cabramatta railway station. Violet was also there with a school friend. She was wearing her school uniform. Delinicolis noticed her and made a comment about her to one of the other police officers. He spoke to Violet through the front passenger window of the police car, asking her name, where she lived, whether she was single, and how old she was. Violet answered each of those questions correctly except for the last, telling Delinicolis that she was 18 when in fact she would not turn 18 until July. 6. Delinicolis handed Violet a piece of paper which had a mobile phone number and the name "Dimitri" on it. Dimitri was a name used by Delinicolis when picking up girls and women at work. The piece of paper came from inside his police notebook. He carried a pile of these with him so that he was prepared in advance to hand out his phone number. While working as a police officer he would give women his number two or three times a week, thus taking the opportunity which his occupation presented to pick up women. 7. As the police officers drove away, some of the officers, to their discredit, congratulated Delinicolis. An officer reminded Delinicolis of what had happened to another police officer. That officer had been transferred due to his inappropriate behaviour towards a 16-year-old girl. Despite saying "she's old enough", after further conversation in the police vehicle about the age of Violet, Delinicolis said, "Nah I am not gonna do anything with it". 8. That same day, Violet contacted Delinicolis by sending him a Whatsapp message. What followed thereafter was the exchange of a large number of messages, many of which were sexually suggestive. They exchanged photographs too, including one on 12 March in which Violet sent a photograph of her genitals to Delinicolis. On 11 March, whilst he was at work, Delinicolis said to another officer "I'm going to try and organise to have sex with her before my next 12 pm shift". 9. On 12 March both offenders worked from 2 pm to 2:30 am the following day. In the afternoon of 12 March, Violet saw both of them working at Cabramatta railway station. She had finished school and was waiting at the bus stop with some friends. Dellosa was staring at her. The two offenders did not speak to her on this occasion. 10. That same day Violet and Delinicolis exchanged further messages. Delinicolis wanted to know if Violet could skip school the following morning. His communications were interrupted when he told her he had to go and arrest someone. At 5:18 pm he messaged Violet telling her that he wanted to see "her pussy". In response, Violet sent that photograph that I have already referred to. 11. That evening when the two offenders were at the police station they were overheard having a conversation. A more sensible police officer than they were said "are you guys seriously talking about a schoolgirl? Haven't you just seen what happened to the Bulldogs players?" This of course is a reference to some rugby league players having done something quite similar to what these offenders did – one difference being, of course, that rugby league players do not hold public office. When Delinicolis said "we are not doing anything wrong" the other police officer said "really, you guys aren't that stupid, are you?" 12. Later that evening Delinicolis called Violet and they spoke. He said "my friend wants to talk you" and handed the phone to Dellosa. Dellosa told Violet that his name was Allen and that his background was Filipino. They had a conversation. "Allen" was a name used by Dellosa when picking up girls and women at work. 13. On 13 March the offenders were due to work a shift which started at 1 pm. Before they started work however a lot of things happened. Delinicolis phoned Violet asking her if she wanted to go to a hotel and have sex. He told her to walk to a park in Cabramatta after her mother had dropped her at school. Violet agreed to this proposal and did not go to school that day. 14. Delinicolis collected Violet from the agreed meeting place in his personal car. She was in her school uniform. He was not in his police uniform although it was on the back seat. Delinicolis raised the subject of her having sex with his friend as well as himself. Violet said "I'm not going to have sex with two people. Maybe one at a time would be okay". 15. Delinicolis and Violet went to a hotel in Cabramatta. When Delinicolis checked in he told her to cover up her school uniform. He paid $125 cash for the room as well as a $200 bond deposit. The two of them went to a room and performed various forms of consensual sexual activity. 16. As I mentioned earlier, the statement of facts tendered by the Crown goes into intimate details as to what forms of sexual activity occurred between Delinicolis and Violet. Given that what happened was all mutually consensual, there is no reason for such details to have been included in that document. Such specifics have the tendency to divert attention from the criminal aspects of the offenders' behaviour and draw attention to the salacious details of the sexual activity. They also attract the attention of the media, some sections of which delight in publishing such matters without any regard to the private interests of young women like Violet. I have little doubt that, like all of us, Violet would prefer that intimate details of her sexual activities were not made public. I am not going to compound the problem by referring in this publicly available judgment to what happened inside the room, beyond that which is absolutely necessary. 17. After the sex was over, there was some conversation between the two of them. Violet asked, "have you done this to other girls?" Delinicolis replied "yeah, with teenage girls still in school". When asked how he even gets the girls he said "I just go up and talk to them". Delinicolis asked Violet if she had any friends, but she said she did not, because she did not want any of her friends to be placed in the same position she was. 18. About this time Dellosa called. Delinicolis placed the call on speaker. Dellosa said that he was at the hotel and asked where they were. Delinicolis told him what room they were in and said, "I already fucked her", to which Dellosa replied "Ok, when I come it's going to be my turn". 19. When Dellosa arrived Violet recognised him as the police officer who was working with Delinicolis at Cabramatta railway station on 12 March. She also recognised him as "Allen", the person to whom she had spoken over the phone the previous evening. 20. Further acts of a sexual nature then took place. Again, it was all consensual. Some activity was video recorded by the offenders. As before, I see no reason to detail the activity which took place, and there are many reasons I should not. I will however note that Delinicolis must have changed into his police uniform because one of the video clips shows that he was wearing it while having sexual intercourse with Violet. 21. Once the sexual activity was completed, the two offenders told Violet to have a shower and also told her "don't tell anyone because we are police and we might lose our job". When Dellosa suggested "maybe we should do this another day" Delinicolis agreed, on the other hand Violet expressed some reluctance saying "I don't know". 22. Delinicolis drove Violet to Cabramatta where her mother later collected her. The two offenders went to work. Delinicolis and Violet exchanged messages that afternoon and tentative plans were made to meet up, but Delinicolis later sent her a message saying that they were too busy at work. 23. During the course of their shift, Delinicolis, Dellosa and other police officers went to the hotel where Delinicolis, in his police uniform, checked out of the room and got his deposit back. 24. A few days later, the two offenders were overheard at work having a conversation about having had sex in a threesome. One police officer asked "Was this the school girl?" but neither offender replied. The same officer later asked Dellosa if Delinicolis was still messaging the school girl. Dellosa replied that she had "gone cold" and that Delinicolis "was treating her like a slut". The officer said to Dellosa, "be careful". 25. Delinicolis continued to contact Violet through various means, attempting to meet up with her again. Violet made excuses as to why she could not meet him. At one stage Delinicolis told her that he had a friend who was divorced from his wife and asked her if she wanted to hook up with him. Violet told him she wasn't interested. 26. Violet blocked Delinocolis' number. He continued to contact her from private numbers but Violet told him that she was too busy. Violet deleted WhatsApp to avoid further communication from the offenders, but contact continued from both offenders through text messages. Eventually, the offenders gave up. 27. In late June an anonymous complaint was made to the police customer assistance unit and an investigation commenced. A number of mobile phones were seized from the offenders. They provided codes to allow those phones to be unlocked. Photographs, video recordings, and messages were found. 28. When interviewed after arrest, what Delinicolis said to investigating police was not all truthful. He denied handing a piece of paper to Violet, he said that he didn't initiate any contact, and that he had never done this type of thing on any other occasion through the course of his work. He also said that he did not remember if any video recordings had been made. He now admits that each of those statements was a lie. 29. Although I am to sentence the offenders for Misconduct in Public Office, it is important to note that initially both offenders were charged with much more serious offences including allegations of attempted aggravated sexual intercourse without consent. A headline from a newspaper article tendered by Mr Strickland SC, who appeared for Delinicolis, encapsulated the allegations the following way "Two senior police officers allegedly lured a 17-year-old schoolgirl into a hotel room and tried to rape her days after meeting her at a train station". The offenders were refused bail. They spent 22 days in custody and both gave evidence before me as to how they were treated whilst in jail. The combination of them both being police officers, and alleged to have tried to rape a schoolgirl, made them targets for both other prisoners as well as at least one prison officer. Death threats were made, suggestions were made that they should kill themselves, and on one occasion it was inferred that Dellosa's food would be urinated on before it was given to him. 30. Whilst not all adverse consequences for an offender are appropriately regarded as extra-judicial punishment, I am satisfied that the frightening period both offenders spent in custody is a factor which I should take into account in determining what sentence to impose upon them. I also take into account that even after release from custody it was not until August this year that the more serious charges laid against them were withdrawn. Both offenders suffered from depression and I have no doubt that the lengthy period under which they were facing those more serious charges was a significant factor in the development of that condition. 31. Both offenders were of otherwise good character before they committed the offence for which I will sentence them. I will take their good character into account, with two qualifications. First, it was their good character which put them in a position to commit the offences in the first place. And secondly, as I mentioned earlier, it was not an isolated thing for the offenders to try to pick up women for sexual relationships whilst they were on duty. 32. Both offenders have also expressed their remorse for what they have done, recognising the harm they have caused, most importantly as far as these charges are concerned, harm to the New South Wales Police Force and the confidence the public has in it. Just as people lose respect for politicians generally when corrupt politicians favour their own interests over the interests of those who elect them, the reputation of police officers is damaged by the actions of these two offenders who used their privileged positions to pick up women, especially a 17 year old school girl, for sexual purposes, even despite warnings from their colleagues. 33. I am satisfied that the remorse expressed by the offenders is genuine, particularly so in the case of Dellosa. He sobbed as he gave his evidence before me and spoke of the effect that his misconduct had had on many other people. He has a complete understanding of the seriousness of his misbehaviour. As far as Delinicolis is concerned, he perhaps initially had an inadequate understanding of the impact of his offence on the police and community generally, but I am satisfied that a proper appreciation of these matters has now developed. 34. I turn now to the subjective matters concerning the two offenders. Delinicolis is Australian born of Greek background. His parents are divorced, relatively recently, and he has a younger brother. His mother suffered from bipolar disorder but a psychiatrist who has been treating him found no evidence of such a condition in his case. Despite his parents' difficulties he told the psychiatrist that he had a positive upbringing. After he finished his HSC he studied at Macquarie University for two years before joining the police force. He was married at the time of his offence although, perhaps not surprisingly, his wife has now applied for a divorce. 35. He joined the Army reserve in May 2018 but has now been suspended. He has also been suspended without pay from the police force. 36. He is currently living with his grandmother and providing her with significant assistance. The publicity given to his offending has been such that he has had trouble getting work so he and a friend have started a strata cleaning and lawnmowing business. 37. I am satisfied that he has good prospects of rehabilitation. Certainly it is most unlikely that he will be in a position to commit an offence such as this one in the future. 38. Dellosa was born in the Philippines, coming with his family to Australia when he was 13 years of age. When he was at high school in year 11, a very significant event occurred. He was stabbed. This was a factor in him deciding to become a police officer. His parents were very proud when he succeeded in that ambition and a significant part of the obvious distress he exhibited in the witness box appeared to be a consequence of his knowledge that he had let his parents down in a significant way. 39. He too was married when he committed this offence but his marriage has survived with his wife having forgiven him. He now volunteers in his local church and is doing well in his studies in construction management. He too has good prospects of rehabilitation. He explained how he has reflected on what it was that led to him committing this offence and recognises now how bad a person he was. 40. Assessing the harm caused by any offence is an important part in determining its objective gravity. In order to best carry out their duties police need their office respected and members of the public to cooperate with them. Police can exercise significant powers over members of the community and it is important that when they do so, their actions are perceived as being carried out in the interests of the community generally, not for the police officer's own personal gain. I note of course that there is no suggestion these offences were committed for financial gain, but they were committed for gain nevertheless. 41. How to assess the harm caused to Violet was the subject of some discussion during submissions. As I have said many times already, Violet consented to the sexual activity which took place on 13 March, and the sexual banter which took place between her and Delinicolis in the lead up was mutual. It would be quite wrong for me to assume that she has been harmed by what took place in the hotel room between her and the two offenders. There is no evidence one way or the other, although the communications between her and Delinicolis afterwards suggest a reluctance on her part to do it again. 42. The Crown asked me to assess the harm to Violet as being how she is now, and in the future, likely to perceive police officers specifically and people in authority generally. That is a foreseeable consequence of these offences. 43. Another matter of importance in assessing the objective gravity of the offences concerns the positions held by the two offenders. In his written submissions, Mr Strickland said, "generally speaking, in determining the objective gravity of the offence, the more junior the officer, and the less significant that officer's responsibilities, the less serious the offence." 1. In oral submissions he suggested that misconduct by a politician was, other things being equal, more serious than misconduct by a police officer. Mr Strickland referred to the remarks of Beech-Jones J in R v Obeid (No12) [2016] NSWSC 1815 at [89] where his Honour said "Mr Obeid's conduct was a very serious example of the offence because of the onerous nature of the duty owed by him as a parliamentarian compared to other such officials and the extent of his departure from it". 1. Of course, the seniority of an offender's position for an offence of misconduct in public office is an important part in assessing the objective gravity of the offence, however that is not to say that Senior Constables of Police who abuse their office as these offenders have, must be regarded as having committed offences which are objectively towards the lower end of the spectrum as Mr Strickland asked me to find. 2. Police Officers hold an important position of trust and authority in the community. They take an oath or affirmation of office. A police officer makes a solemn promise that he or she will "to the best of my skill and knowledge discharge all my duties faithfully according to law". 3. Police officers have significant powers. They can do many things without warrant, things which represent significant intrusions into the lives and liberty of citizens. That members of the community respect the exercise of those powers by police and are content for police officers, even relatively junior ones, to have such powers is important. Of course an officer's seniority is important in determining how serious an offence is, but so is a consideration of the powers that that officer can exercise. I do not accept that it is necessarily the case that misconduct by a person holding a relatively junior public office is less objectively serious than misconduct by a politician. 4. These offenders were seen by Violet, and other police officers who observed their behaviour or overheard their conversations, to have little regard for the trusted positions they held. Nor could it be suggested that they were unaware that what they were doing was wrong – it will be recalled that they told Violet not to tell anyone what they had done because they might lose their jobs. 5. The Crown wanted me to take into account, as an aggravating factor, that the offences involved a breach of trust. He was not able however to postulate any circumstance in which the offence of misconduct in public office would not involve a breach of trust. He relied on something said by Campbell J in Blackstock v R [2013] NSWCCA 172 at [61] but as Mr Strickland pointed out, by reference to paragraph [50] of that judgment, all his Honour was saying was that part of the seriousness of offences of misconduct in public office is because they all involve a breach of public trust. It would therefore be double counting for me to regard breach of trust as an aggravating factor. Part of what has made the offences for which I must sentence these two men so serious is, as in the case of all offences of misconduct in public office, that they have breached the trust that the public reposed in them. 6. The offences committed by the two offenders were not of equal seriousness. The facts revealed that, at least as far as their interaction with Violet is concerned, Delinicolis was the leader and Dellosa was the follower. The former was the one who approached Violet in the first place, and the one who had the vast majority of communications with her. 7. When I take into account the positions held by the two offenders, the harm that their actions have caused, and the differing roles they played in the offence I find that objectively, the offence committed by Dellosa is towards the lower end of the spectrum, but I do not make a similar finding in the case of Delinicolis. This is an important finding because Mr Strickland concedes that unless I were to have found that his client's offence was towards the lower end of the spectrum of objective gravity, then a custodial sentence of some kind would be appropriate. 8. General deterrence and denunciation are, of course, of considerable importance in this case. So important are police officers in ensuring an ordered society and that its citizens are protected from crime, that the courts need to do what they can to ensure that offences of this kind are rare. In determining how much of an impact general deterrence has on the sentences appropriate to these offenders, I take into account that they have already been significantly adversely effected. 9. Before I forget to mention it, I should make it clear that in determining the sentences to impose upon both offenders I've taken into account their pleas of guilty. These came at the earliest opportunity and so the sentences I impose upon both of the offenders will be 25% less than they would otherwise have been. 10. Ms Cuneen SC, who appeared for Dellosa, asked me to take into account that this matter could have been dealt with in the Local Court. I will do so, but frankly it has not made any difference to the sentences I have chosen to impose. Many factors determine the appropriate Court in which criminal proceedings should be dealt, and the jurisdictional limit on Local Court sentences is but one of those. 11. Parity is important. I have to ensure that neither offender has a justifiable sense of grievance when he compares the sentence imposed upon himself with the sentence imposed upon his co-offender. I will not impose identical sentences on the two offenders, primarily because of the differing roles they each played in the offence. 12. Particularly important in assessing what sentences to impose on these two offenders are the following: * My assessment of the objective gravity of each offence. * The extra judicial punishment which resulted from them being bail refused for 22 days in frightening conditions, resulting from charges being laid against them which have now been withdrawn. * My findings that they have good prospects of rehabilitation. * The need to impose sentences which will act as a powerful disincentive for police officers who may be tempted to abuse their positions for personal gain. 1. I agree with Mr Strickland's concession that, given my findings as to the objective seriousness of his client's offence, a custodial sentence is required. I have decided on the length of that sentence. As that is such that an Intensive Correction Order is an option, the question becomes how the sentence of imprisonment should be served. Mr Strickland submits that this is an appropriate matter where the sentence of imprisonment can be served by means of an ICO. I agree. Were it not for the extra-judicial punishment to which I have referred, I may have had a different view, but his client has already been punished in a significant way, not only through being incarcerated but also through the loss of his marriage and his reputation, and the almost certain loss of his job. 2. I take into account similar matters in Dellosa's case, although as I have already noted his wife has forgiven him and their marriage is intact. But more importantly I have found that his offending is towards the lower end of the spectrum as far as its objective gravity is concerned. No one has suggested that all offences of misconduct in public office must result in a sentence of imprisonment and there is thus scope for non-custodial sentences to be imposed where the circumstances justify it. When I consider what Dellosa did, what has happened to him since, and his profound remorse, I am satisfied that the threshold for the imposition of a custodial sentence has not been crossed. 3. In each case I will impose sentences on the offenders which have conditions attached. Included are orders that they each perform community service. That is also part of the punishment they must undergo and will act as a continuing reminder to them of just how wrong it was for them to treat the privileged position of a police officer as being an opportunity to pick up a schoolgirl so they could have sex with her. 4. Delinicolis is sentenced to imprisonment for two years. That sentence is to be served by means of an intensive correction order which starts today. As well as the mandatory conditions applying to that order there must be at least one additional condition unless there are exceptional circumstances, which is not this case. The offender is to perform 400 hours community service. He is to report to Burwood community corrections office by telephone within seven days so that appropriate arrangements can be made. 5. I impose upon Dellosa a community corrections order for a period of 18 months from today. He is to perform 300 hours community service. He is to submit to supervision by a community corrections officer. He is to report to Liverpool community corrections office within seven days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2021