Aramoana v The Queen

[2021] NZCA 241

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA143/2019
 [2021] NZCA 241

BETWEEN	ERU NANABOY ARAMOANA Appellant
AND	THE QUEEN Respondent

Hearing:	19 May 2021
Court:	Cooper, Simon France and Edwards JJ
Counsel:	K H Maxwell for Appellant J E Mildenhall for Respondent
Judgment:	9 June 2021 at 10.30 am

JUDGMENT OF THE COURT

AThe application for leave to withdraw a notice of abandonment is declined.

B      An extension of time for the sentence appeal is granted. 

CLeave to adduce further evidence on the sentence appeal is granted.

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REASONS OF THE COURT

(Given by Simon France J)

1. Mr Aramoana was convicted in November 2018 on one charge of aggravated robbery.  He was sentenced on 17 January 2019 to a term of imprisonment of five and a half years.[1]  On 3 April 2019 he filed a notice of appeal.  The notice was described as a sentence appeal, but the grounds were directed towards a conviction appeal. 

   [1]R v Aramoana [2019] NZDC 657.

2. A minute of this Court confirmed it was an appeal against both conviction and sentence.[2]  More specificity of the grounds of appeal for both the conviction and the sentence appeal was required to be filed.  There were then two subsequent telephone conferences, at the second of which abandonment was indicated.  Counsel then acting for Mr Aramoana, who had represented him at trial, said the abandonment would be effected either by counsel memorandum or a notice signed by Mr Aramoana. 

   [2]Aramoana v R CA143/2019, 23 August 2019 (minute of Stevens J).

3. As it happens, a notice was filed, but signed by counsel.  On its face it abandons only the conviction appeal. 

4. On 5 February 2020, about two months after the notice of abandonment was filed, Mr Aramoana filed a notice of application for leave to withdraw the abandonment of his sentence appeal.  The essence of the proposed appeal would be the proposition that insufficient recognition was given to cultural factors.

5. Having reviewed the documentation, we are satisfied the sentence appeal has never actually been abandoned.  The abandonment notice relates only to the conviction appeal.  Mr Aramoana has been consistent, right from the original sentencing, in his desire for a report under s 27 of the Sentencing Act 2002 to be obtained and factored into 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 notice of abandonment was filed, counsel then acting for Mr Aramoana sent an email confirming that the sentence appeal was also abandoned.  However, neither Mr Aramoana nor his counsel amended and signed the notice of abandonment to that effect as required by r 35(2) of the Court of Appeal (Criminal) Rules 2001. 

Conclusion

1. The application will be formally declined because in fact there is no abandonment to withdraw.

2. To advance matters we grant an extension of time for the sentence appeal to be filed (the original notice of appeal was filed 33 working days out of time). 

3. 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