Citation: R v Delinicolis & Dellosa [2021] NSWDC 684
Court: District Court of New South Wales
Date: 17 December 2021
Judge(s): Berman SC ADCJ
Background
Two serving police officers, attached to the Police Transport Command, pleaded guilty to the common law offence of misconduct in public office. Both officers admitted to systematically misusing their positions to approach women while on duty and pursue sexual relationships with them. The conduct spanned approximately a year, from May 2019 to May 2020.
The most serious episode involved a 17-year-old girl (referred to throughout as "Violet," a pseudonym), whom one officer initially contacted at a bus stop while she was in her school uniform. Over subsequent days, both officers arranged and participated in consensual sexual activity with Violet, who had told them she was 18. The court accepted she was legally capable of consenting, and no separate sexual offence was charged.
Beyond the encounter with Violet, police investigators identified at least nine other women approached by the officers while they were on duty. The court found that the behaviour was not isolated, and that one officer routinely pre-prepared slips of paper bearing a false name and his phone number to hand out during shifts.
Legal Issues
- What constitutes wilful and culpable misconduct in public office in the context of police officers pursuing sexual relationships while on duty?
- How should the objective gravity of the offending be assessed, given the absence of a close statutory analogue and the unusual nature of the misconduct?
- Whether the sentences of imprisonment should be served by way of an Intensive Correction Order (for Delinicolis) or a Community Corrections Order (for Dellosa), given their different circumstances?
- Whether the parity principle required the two offenders to receive comparable sentences, and how differences in their conduct and personal circumstances justified different outcomes?
Decision
Berman SC ADCJ found that both offenders had committed a serious breach of the public trust inherent in holding office as police officers. Their positions gave them a privileged opportunity to approach members of the public, and they exploited that opportunity systematically for personal sexual gratification. The court noted that the offending caused real damage to the reputation of the NSW Police Force.
The court acknowledged the sentencing exercise was made more difficult by the unusual nature of the misconduct. Most misconduct in public office cases involve corruption or abuse of authority in a conventional sense. No statutory analogue existed with a maximum penalty to guide the exercise, and comparable cases were of limited assistance.
In assessing the two offenders separately, the court found Delinicolis's offending was more serious. He initiated contact with Violet, was the architect of the hotel arrangement, and had boasted of similar conduct with other young women. His sentence was set at two years' imprisonment, to be served by way of an Intensive Correction Order, with 400 hours of community service. The court noted that significant extra-judicial punishment, including the breakdown of his marriage and loss of liberty through prior remand, weighed in favour of a non-custodial method of serving the term.
Dellosa's offending was found to sit towards the lower end of the objective gravity spectrum. While he participated in the encounter with Violet, his role was secondary to Delinicolis's. The court also placed significant weight on his profound remorse, his intact marriage, and his circumstances since the offending came to light. The court concluded the threshold for a custodial sentence had not been crossed and imposed a Community Corrections Order of 18 months with 300 hours of community service.
Orders Made
- Delinicolis: Sentenced to 2 years' imprisonment, to be served by way of an Intensive Correction Order commencing 17 December 2021, with 400 hours of community service; required to report to Burwood Community Corrections by telephone within 7 days.
- Dellosa: Community Corrections Order for 18 months from 17 December 2021, with 300 hours of community service and supervision by a community corrections officer; required to report to Liverpool Community Corrections within 7 days.
Key Takeaways
- The District Court confirmed that misconduct in public office can be established where police officers misuse the access and authority their role provides to pursue personal sexual relationships, even where the sexual conduct itself is consensual and lawful.
- A sentencing court may find this offence particularly difficult to calibrate where no statutory analogue exists and the nature of the misconduct is unusual; comparable sentencing precedents may be of limited utility.
- Systematic, repeated conduct, distinguished from a single isolated lapse, is an aggravating feature that denies an offender the benefit of being sentenced on the basis of opportunistic or momentary misconduct.
- The parity principle does not require identical sentences where co-offenders played materially different roles; the court justified different order types by reference to Dellosa's lesser initiating role, the depth of his remorse, and his personal circumstances.
- Extra-judicial consequences, including the breakdown of family relationships, significant reputational harm, and any period spent in custody, are relevant mitigating factors in determining the appropriate method by which a sentence is to be served.
Legislation and Cases Referenced
Cases:
- Blackstock v R [2013] NSWCCA 172
- R v Obeid (No 12) [2016] NSWSC 1815
Legislation:
No specific legislation was cited in the decision. The offence of misconduct in public office is a common law offence.