BENJAMIN RICHARD HENDERSON AND THE KING - [2025] NZCA 147

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA482/2024
[2025] NZCA 147

BETWEEN	BENJAMIN RICHARD HENDERSON Appellant
AND	THE KING Respondent

Hearing:	24 March 2025
Court:	Palmer, Brewer and Gault JJ
Counsel:	R J T George for Appellant A M Harvey and G J Barrett for Respondent
Judgment:	7 May 2025 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

Summary

Mr Benjamin Henderson was released on parole subject to a drug and alcohol condition. He provided a false urine sample for a drug test. He pleaded guilty to a charge of failing to provide a valid urine sample under s 71A of the Parole Act 2002 and was convicted and discharged. He then pleaded guilty to, and was convicted of, a further charge of attempting to pervert the course of justice, under s 117(e) of the Crimes Act 1961. He appeals the latter conviction on two grounds: that he is being punished twice for the same thing because the Judge erred in deciding there was no common punishable act between the two charges; and that the offending was not an attempt to pervert “the course of justice”.[1]
[1]R v Henderson [2024] NZDC 12998 [judgment under appeal].
We dismiss the appeal. First, Mr Henderson’s failure to provide a sample at all constituted the offence under the Parole Act. His provision of a false urine sample constituted the offence under the Crimes Act. They are not common punishable acts or omissions. Second, Mr Henderson’s provision of the false sample had a tendency to deflect or adversely affect a future investigation that would inform the Parole board as to whether Mr Henderson should be recalled to prison. That is capable of constituting an action that perverts the course of justice.

What happened?

The sample

In May 2020, Mr Henderson was convicted of dishonesty, firearm and drug offences and sentenced to imprisonment for six years and five months.[2] On 22 September 2021, he was released on parole subject to conditions that he “not possess or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed to [him] by a health [p]rofessional” and that he “attend an alcohol and drug assessment”.
[2]R v Henderson [2020] NZDC 7504 at [16].
Mr Henderson failed to attend five appointments for a drug test. On 26 September 2023, he attended an appointment but was unable to provide a urine sample after three attempts. On 29 September 2023, he was warned by Community Corrections of the consequences of non-compliance with the drug testing requirements. On 9 October 2023, he attended a further appointment and provided a false urine sample. Mr Henderson was recalled to prison for breaching his parole release conditions and posing an undue risk to the safety of the community.

The Parole Act charge

On 19 October 2023, Ara Poutama Aotearoa | the Department of Corrections (Corrections) charged Mr Henderson under s 71A of the Parole Act,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZCA 147
Decision Date: 7 May 2025 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Benjamin Richard Henderson, the appellant, appealed against his conviction for attempting to pervert the course of justice under section 117(e) of the Crimes Act 1961. The appeal arose from a conviction following his provision of a false urine sample for a drug test while on parole, which he was required to comply with under the Parole Act 2002. Henderson argued that he should not be punished twice for the same offence and that his actions did not constitute an attempt to pervert the course of justice. The Court of Appeal dismissed the appeal, finding that the two charges did not arise from the same facts or involve a common punishable act, and that Henderson's actions had a tendency to obstruct the Parole Board's investigation into his parole compliance.

The court first examined whether Henderson's failure to provide a urine sample and his provision of a false urine sample constituted the same offence. The court held that they did not, as the former involved a failure to comply with a parole condition, while the latter was a deliberate act to avoid legal consequences. The court accepted the Crown's argument that the two charges criminalised different conduct and that the acts that made the second charge punishable were not substantially the same as the omission that made the first charge punishable.

Second, the court considered whether Henderson's provision of the false urine sample constituted an attempt to pervert the course of justice. The court held that the Parole Board's consideration of an offender's compliance with parole conditions constituted the course of justice. Henderson's provision of a false urine sample had a tendency to deflect or adversely affect a future investigation into his parole compliance, which would inform the Parole Board's decision on whether to recall him to prison. The court held that this was sufficient to constitute an attempt to pervert the course of justice, in line with the broad interpretation of the term required by the Crimes Act. The court rejected Henderson's argument that an investigation must have been underway for an offence to constitute an attempt to pervert the course of justice.

Orders