They take an oath to uphold the law and protect the community; a community that pays over $3 billion every year in New South Wales alone for their service.
But, there are dozens of examples of police officers who have committed serious criminal offences, using their trusted position to assist in the perpetration of crimes.
This is alleged to be the case with two Sydney police officers, who have been arrested and charged with sexual offences against a 17-year old schoolgirl.
30-year old Angelo Dellosa, a married father of two, has been charged with inciting an aggravated sexual assault, attempted aggravated sexual assault in company and producing child abuse material, while 29-year old James Delinicolis is charged with attempted aggravated sexual assault in company, producing child abuse material and misconduct in public office.
The pair have been suspended from the NSW Police Force, and were refused bail in Sutherland Local Court.
They are currently in remand at Silverwater Metropolitan Remand and Reception Centre (the MRRC) until their next court appearance in September 2020.
Court documents allege that James Delinicolis used his position and authority as a New South Wales police officer to prey on the 17-year-old during the course of his duties, for the purposes of “procuring a sexual relationship”, before attempting to have sexual intercourse with the girl in the company of his co-accused.
It is further alleged that the men filmed sexual acts involving the girl.
Professional Standards – the internal team responsible for investigating misconduct by their colleagues – arrested the men, and it’s understood that the police watchdog, the Law Enforcement Conduct Commission (LECC), has also been briefed on the situation.
Police have also indicated that further charges against the men have not been ruled out.
Aggravated sexual assault in NSW
Aggravated sexual assault is an offence under section 61J of the Crimes Act 1900 (NSW) (‘the Act’) which carries a maximum penalty of 20 years’ imprisonment.
It is where a person has “sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse”.
Sexual intercourse is defined by section 61HA of the Act as sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
- any part of the body of another person, or
- any object manipulated by another person, or
- sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
- cunnilingus, or
- the continuation of any of the above conduct.
‘Circumstances of aggravation’ are where:
- at the time of, or immediately before or after, the commission of the offence, the defendant intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
- at the time of, or immediately before or after, the commission of the offence, the defendant threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
- the defendant is in the company of another person/s, or
- the complainant is under the age of 16 years, or
- the complainant is (whether generally or at the time of the commission of the offence) under the authority of the offender, or
- the complainant has a serious physical disability, or
- the complainant has a cognitive impairment, or
- the complainant breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
- the complainant deprives the complainant of his or her liberty for a period before or after the commission of the offence.
Aggravated sexual assault carries what’s known as a ‘standard non-parole period’ (SNPP), which in this case is 10 years imprisonment.
An SNPP is a reference point or guidepost for a sentencing judge when deciding the minimum term (or non-parole period) that a person must spend behind bars before becoming eligible for release from custody on parole.
Section 344A of the Crimes Act makes clear that, “any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty.”
In other words, the maximum penalty for attempts is the same as the maximum penalties that applies where the offender was successful in their attempt.
In addition to the prosecution having to prove the essential ingredients of any sexual assault charge, it must disprove any legal defences that are validly raised by a defendant.
These legal defences include:
- Necessity, and
- Self defence
The issue of consent
To establish guilt in a sexual assault case, the prosecution will need to prove that sexual intercourse took place and that the complainant did not consent to the intercourse.
To establish a lack of consent, the prosecution must first prove the complainant did not consent.
It must then prove that the defendant knew the complainant did not consent.
This second requirement is established where the prosecution proves that the defendant:
- knew the complainant was not consenting, or
- was reckless as to whether the complainant was consenting, or
- had no reasonable grounds to believe the complainant was consenting.
In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.
In addition to this, the law provides that a person cannot consent to sexual intercourse where he or she:
- does not have the capacity to consent due to their age or cognitive incapacity, or
- does not have the opportunity to consent as they are unconscious or asleep, or
- consents because of threats of force or terror, or
- is unlawfully detained.
The law also provides that a person does not consent if under a mistaken belief that:
- he or she is married to the defendant, or
- that the sexual intercourse is for health or hygienic purposes.
The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:
- was substantially affected by drugs or alcohol,
- was subjected to intimidatory or coercive conduct, or another threat, that did not involve force, or
- was taken advantage of through an abuse of authority or trust.
The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.
The offence of producing, disseminating or possessing child abuse material
Section 91H of the Crimes Act 1900 prescribes a maximum penalty of 10 years in prison for “producing, disseminating or possessing child abuse material.”
Under the section, “production” refers to the creation of child abuse material; for example, filming, photographing or drawing a child who is engaged in a sexual pose or activity, or a child who is portrayed to be a victim of torture, cruelty or physical abuse. It can also refer to agreements entered into to produce child abuse material.
“Dissemination” refers to the distribution, supply, exhibition or transmission of child abuse material – for example, sending child abuse material to others over the internet, or selling and distributing DVDs which contain child abuse material. It can also refer to agreements to supply, distribute, exhibit or transmit child abuse material.
“Possession” refers to cases where a person had child abuse material in their custody and control, for example, where child abuse material is found on a computer or at a person’s home.
Under section 91FB of the Act, “child abuse material” means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:
- a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
- a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
- a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
- the private parts of a person who is, appears to be or is implied to be, a child.
The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:
- the standards of morality, decency and propriety generally accepted by reasonable adults, and
- the literary, artistic or educational merit (if any) of the material, and
- the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
- the general character of the material (including whether it is of a medical, legal or scientific character).
The “private parts” of a person are:
- a person’s genital area or anal area, whether bare or covered by underwear, or
- the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
Statutory defences to child abuse material charges
Section 91HA of the Act contains a number of defences to child abuse material charges, which are:
Innocent production, dissemination or possession
It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.
It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it.
It is a defence in proceedings for an offence against section 91H that the conduct engaged in by the defendant:
- was of public benefit, and
- did not extend beyond what was of public benefit.
Law enforcement officers
It is a defence in proceedings for an offence against section 91H that:
- the defendant was, at the time of the offence, a law enforcement officer acting in the course of his or her duties, and
- the conduct of the defendant was reasonable in the circumstances for the purpose of performing that duty.
It is a defence in proceedings for an offence against section 91H that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC).
It is a defence in proceedings for an offence against section 91G or 91H that the conduct engaged in by the defendant:
- was necessary for or of assistance in conducting scientific, medical or educational research that has been approved by the Attorney General in writing for the purposes of this section, and
- did not contravene any conditions of that approval.