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Rokotunidau v State [2012] FJCA 8; AAU0095.2010 (1 March 2012)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI

Criminal Appeal No. AAU0095 of 2010

HAC 11/2005; HAC39/2005; HAC143/2007 Ltk; HAC74/2009;
HAC75/2009; HAC106/2009; HAC108/2009; HAC57/2010

BEFORE THE HON. RESIDENT JUSTICE OF APPEAL, HON. JUSTICE WILLIAM MARSHALL

BETWEEN:

SAIMONI ROKOTUNIDAU
Appellant

AND:

THE STATE
Respondent

COUNSEL: Appellant in Person
Mr S. Vodo for Respondent

Date of Hearing: Monday, 14th March 2011
Date of Ruling: Thursday, 1st March 2012

RULING

1. I heard this case involving Saimoni Rokotunidau and the State as an application to enlarge time in which an appeal could be lodged on 17th February 2011. There seemed to be credibility behind Saimoni Rokotunidau's complaint of being denied materials and cooperation in lodging his appeal by those administering Naboro Prison. I was also concerned that a number of offences while Saimoni Rokotunidau had been a police officer employed in giving undercover information about offenders and offences. I asked that I should have a transcript of the evidence of a senior police officer who gave evidence after Saimoni Rokotunidau pleaded "guilty" to eight informations on 1st April 2010 before Mr Justice Goundar. I also asked if the Naboro Prison matter could be reported on by the State. I ordered that the application for extension be heard with the application for leave to appeal against sentence and fixed 14th March 2011 as the return date.
   
2. I am now satisfied that Naboro Prison did prevent access and therefore I will extend the time for making the application for leave to the date when Saimoni Rokotunidau finally made his application.
   
3. The basic facts of Saimoni's life since he was released from Prison in 2003 are amazing. Although he had 34 convictions and soon committed the offences in the first of these eight informations, he seems to have been successful in obtaining bail when that should not have been granted. On top of that he became a police officer. Indeed at the time at least two of these robberies were committed he was on the police establishment. I am well aware that criminals are often used as police informers but I have not come across such persons becoming police officers. As resulted in this case, if the convict commits offences while being serving police officer, it brings the force into disrepute. Therefore the general rule of policy that those sworn in as constables be persons of good character and without previous convictions.
   
4. The enormity of the task placing Saimoni Rokotunidau is apparent from the facts of the eight informations to which he pleaded guilty. I adopt the summary prepared by Mr Justice Goundar in the Court below.
   

"Facts

[2] In Case No: HAC011 of 2005, you pleaded guilty to one count of armed robbery. This was an armed robber of a bank. In the morning of 15 August 2003, you entered the ANZ bank, Samabula branch, with a group of men and threatened the bank tellers with a pistol, an axe, a cane knife and a pinch bar. The robbers wore balaclavas to conceal their identity. On that day, seven bank tellers, four women and three men, were serving at the counters, which were protected by glass shields. Nobody was physically injured in the robbery. However, extensive damages were done to the bank. The entrance door and the glass shields at the counters were smashed. A total sum of $27,330.00 cash was stolen.

[3] Following arrest, you admitted the offence to the police. Only $535.00 was recovered. It is not clear what your actual role was in this robbery. A co-accused, who had a minimal role in the robbery, was sentenced to 6 years imprisonment on 4 November 2005 by Shameem J, following a guilty plea (State v. Patrick Fong Criminal Case No. HAC011 of 2005S).

[4] In Case No. HAC039 of 2005, you pleaded guilty to one count of assault with intent to rob, one count of larceny, two counts of unlawful use of motor vehicle and one count of robbery with violence. On 31 May 2003, you and another person threatened the victim, David Rajend Sharma, with a cane knife and demanded money from him while he was on his way to a grocery shop. According to the medical report of the victim, he sustained bruises and lacerations on face and fingers. When the victim retaliated, you fled the scene in his vehicle. The victim was an electrical engineer. He kept mechanical tools in his vehicle. You stole the tools to a total value of $5,574.70 and abandoned the vehicle in an isolated location. The tools remain unrecovered.

On 22 July 2003, you took a vehicle belonging to Michael Chandra without his consent from Nasinu. You changed the registration number plate of the vehicle and then used it to commit an armed robbery at the Money Exchange Limited in Suva. The robbery was committed in the early hours of 23 July 2003. You committed this robbery with a group of men. The entrance glass door of the building was smashed and damaged. The employees were threatened with cane knives and pinch bars to handover the money. Nobody was physically injured. A total sum of $2472.00 cash was stolen, which remains unrecovered. You admitted the offences to the police.

[6] In case No. HAC143 of 2007(Ltk), you pleaded guilty to one count of robbery with violence and three counts of criminal intimidation. This was a planned robbery of a jewellery shop in Ba. The planning was done in Suva a month before the robbery. On 3 September 2007, you robbed the Anita Jewellery Shop ion Ba. You committed this robbery with a group of men armed with knives and pinch bars. The security officer guarding the shop was assaulted in the course of the robbery. He was physically injured. The glass shelves were smashed and damaged. Jewelleries valued $123,895.00 were stolen. While fleeing, the robbers were confronted by a police officer at a roadblock. The robbers threatened the police officer with a cane knife and diverted their vehicle to another road. Further in the pursuit, another two police officers tried to stop your vehicle. The police officers were threatened with stones and cane knives. One police officer was injured. He received an open wound on his leg. Eventually, the robbers were apprehended by the assistance of some villagers and brought to a police station. Jewelleries valued $63,423.74 were recovered.

[7] In Case No. HAC74 of 2009, you pleaded guilty to one count of robbery with violence and unlawful use of motor vehicle. The incident relates to an armed home invasion robbery executed with a group of men. On 28 July 2003 at about 3.25 am, you entered the home of the victim, Mohammed Farud, after threatening the security guard with a cane knife. The victim was threatened to handover items valued at $17,330.00. Nobody was injured. The robbers fled the scene in the victim's vehicle. Electronic items were stolen from the vehicle. The items stolen from the victim's home and vehicle remain unrecovered. The victim's vehicle was left extensively damaged. The total value of damage done to the vehicle was $7,000.00. You admitted the offences to the police.

[8] In Case No. HAC75 of 2009, you pleaded guilty to one count each of robbery with violence and unlawful use of motor vehicle. On 30 August 2003, you robbed the Western Union Money Transfer Office at Victoria Parade in the company of others. The robbery was executed in the plain view of the customers. The employees were threatened with pinch bars and cane knives. The security officer was assaulted on the head with an iron rod. F$32,672.84 and A$40.00 were stolen. The entrance glass door of the building was extensively damaged in the course of the robbery. The robbers escaped in a vehicle belonging to another victim, Tupou Wata. $4,000.00 cash was recovered from a co-accused. You admitted the offences to the police.

[9] In Case No. HAC106 of 2009, you pleaded guilty to one count of robbery with violence. On 22 June 2009 at around 10am, a group of men armed with a gun, pinch bar and cane knife entered the home of the victim, Sahid Hassan and threatened his family members and workers before taking off with $7,845.00 cash, cheques, and a shotgun valued $700.00. Nobody was injured.

[10] You were involved in the planning of this robbery. You carried out a surveillance of the victim's house before the robbery was executed. You committed this offence while serving as a police officer. You were in possession of a police vehicle. You used the police vehicle to escort the getaway vehicle of the robbers. Following arrests of the perpetrators, $4,500.00 in cash and cheques were recovered.

[11] In Case No. HAC108 of 2009, you pleaded guilty to one count each of robbery with violence and unlawful use of motor vehicle. This was an armed home invasion robbery with a group of men. You threatened the victim, Satish Chandra and his family members, after forcefully entering their home while they were asleep. You robbed them of jewelleries and electronic items to a total value of $1,700.00, and then fled in the victim's vehicle. Nobody was injured in the course of the robbery but the stolen items remain unrecovered. The offences were committed while you were employed as a police officer. Your co-accused, Timoci Delana, was sentenced to 10 years imprisonment on 1 February 2010 following a guilty plea.

[12] In Case No. HAC57 of 2010, you pleaded guilty to an offence of receiving stolen property. On 21 September 2009, the home of the complainant, Jai Ram, was broken into and items were stolen including a stereo. The same stereo was later found in your house. In your caution interview, you admitted receiving the stolen stereo."

5. The offences involved eight robberies with violence. This very serious sequence of offences starts on 15th August 2003 and ends on 21st September 2009. Highlights include:
   
   • (1) A 2003 bank robbery of ANZ Samabula where a firearm was used to threaten and $27,330.00 cash was stolen.
     
   • (2) The Anita Jewellery shop robbery in Ba in 2007 where $123,895.00 in jewellery was stolen and a pursuing police officer was slashed and wounded in his leg.
     
   • (3) From 2003, there was a home invasion and loss and damage came to $23,340.00.
     
   • (4) In 2009 the Western Union Money Transfer office in Suva was robbed and $32,672.00 was stolen and a security officer was hit over the head with an iron rod.
     
   • (5) Also in 2009 Saimoni Rokotunidau planned the robbery from Sahid Hassan's house. He also "cased the joint". The weapons used to ensure compliance included a firearm. A shot gun and $7,845.00 in cash was taken. Saimoni Rokotunidau was a serving police officer and used a police car to escort the getaway vehicle of the robbers. One of the robbers was sentenced to 10 years imprisonment after a guilty plea.
     
   • (6) In 2009 there was another armed home invasion robbery in the night when the home of Satish Chandra was entered. This was also committed whilst Saimoni Rokotunidau was a serving police officer.
     
6. I do not understand how this serious offender remained at liberty from 2003 to 2010 after committing those offences. He had 34 previous convictions since 1994. He was an offender who could have been imprisoned to protect the public. I do not believe the sentence in totality of 12 years with a minimum before parole of 9 years was sufficient to mark these offences, to deter others or to protect the public. I have no doubt that Saimoni Rokotunidau realized that a plea of guilty to this series of offences would result in a total sentence well below the total if they had come before the courts individually. His speculation in this was correct. In this context the suggestions that the prisoner should obtain a further one-third discount for pleas of guilty in 2010 is frivolous. By obtaining a total of 12 years, Saimoni Rokotuniday obtained disproportionate benefits and discounts from a lenient totality. He was over rewarded to a significant extent for his pleas of guilty. Nor is there anything in his supposed services to the police in giving information. This is more than cancelled out by the detriment Saimoni Rokotunidau caused to the reputation of the force. To use a police car as a serving police officer in assisting the getaway of the vehicle containing those who entered and robbed a home in the middle of the night, if it was not true, might be thought an apocryphal story.
   
7. On 20th June 2011 a further submission was filed to the Court by Saimoni Rokotunidau. He submitted that his plea was equivocal. But it is much too late to appeal against conviction and be granted leave. Having looked at the facts they are also frivolous and vexatious without any chance of success.
   
8. I will refuse leave to appeal against sentence. If this matters were to come before the full court it is likely that the sentence would be increased.
   
9. By section 35(2) of the Court of Appeal Act I must consider whether this application and Saimoni Rokotunidau's appeal should be finally dismissed. In my view for the reasons above expressed this application has no chance of success and is an abuse of process. It is also frivolous and vexatious. I propose to dismiss Saimoni Rokotunidau's appeal under section 35(2) of the Court of Appeal Act.
   

ORDERS

10. I order
    
    • (1) that Saimoni Rokotunidau's time for making an application to appeal against sentence be extended.
      
    • (2) that Saimoni Rokotunidau's application to appeal against sentence be refused.
      
    • (3) that Saimoni Rokotunidau's appeal against conviction and sentence be finally dismissed under section 35(2) of the Court of Appeal Act.
      

William Marshall
Resident Justice of Appeal