ARAMOANA v R [2021] NZCA 241

ARAMOANA v R [2021] NZCA 241 [9 June 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA143/2019[2021] NZCA 241BETWEEN ERU NANABOY ARAMOANAAppellantAND THE QUEENRespondentHearing: 19 May 2021Court: Cooper, Simon France and Edwards JJCounsel: K H Maxwell for AppellantJ E Mildenhall for RespondentJudgment: 9 June 2021 at 10.30 amJUDGMENT OF THE COURTA The application for leave to withdraw a notice of abandonment is declined.B An extension of time for the sentence appeal is granted.C Leave to adduce further evidence on the sentence appeal is granted.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Mr Aramoana was convicted in November 2018 on one charge of aggravatedrobbery. He was sentenced on 17 January 2019 to a term of imprisonment of five anda half years.1 On 3 April 2019 he filed a notice of appeal. The notice was describedas a sentence appeal, but the grounds were directed towards a conviction appeal.[2] A minute of this Court confirmed it was an appeal against both conviction andsentence.2 More specificity of the grounds of appeal for both the conviction and thesentence appeal was required to be filed. There were then two subsequent telephoneconferences, at the second of which abandonment was indicated. Counsel then actingfor Mr Aramoana, who had represented him at trial, said the abandonment would beeffected either by counsel memorandum or a notice signed by Mr Aramoana.[3] As it happens, a notice was filed, but signed by counsel. On its face it abandonsonly the conviction appeal.[4] On 5 February 2020, about two months after the notice of abandonment wasfiled, Mr Aramoana filed a notice of application for leave to withdraw theabandonment of his sentence appeal. The essence of the proposed appeal would bethe proposition that insufficient recognition was given to cultural factors.[5] Having reviewed the documentation, we are satisfied the sentence appeal hasnever actually been abandoned. The abandonment notice relates only to the convictionappeal. Mr Aramoana has been consistent, right from the original sentencing, in hisdesire for a report under s 27 of the Sentencing Act 2002 to be obtained and factoredinto his sentence. A s 27 report has been filed in support of the present application.[6] Subsequent to the hearing the Registrar has made us aware that after the noticeof abandonment was filed, counsel then acting for Mr Aramoana sent an emailconfirming that the sentence appeal was also abandoned. However,neither Mr Aramoana nor his counsel amended and signed the notice of abandonmentto that effect as required by r 35(2) of the Court of Appeal (Criminal) Rules 2001.1 R v Aramoana [2019] NZDC 657.2 Aramoana v R CA143/2019, 23 August 2019 (minute of Stevens J).Conclusion[7] The application will be formally declined because in fact there is noabandonment to withdraw.[8] To advance matters we grant an extension of time for the sentence appeal to befiled (the original notice of appeal was filed 33 working days out of time).[9] We also grant leave for further evidence to be adduced on the sentence appeal.This grant of leave is limited to the s 27 report already filed.Solicitors:Crown Law Office, Wellington for Respondent