Court increases jail term for caregiver who killed tetraplegic

Keith McCormick

The Court of Appeal has imposed a life term on Eric Neil Smail and increased his minimum non-parole period to 13 years for the murder of the tetraplegic friend he was caring for, Keith McCormick.

The Crown appealed the sentence imposed in June by Justice John Fogarty in the High Court at Christchurch when Smail was jailed for 12 years with a minimum term of seven years after pleading guilty to the murder.

Justice Fogarty concluded at the hearing that although he did not see it as a mercy killing, it would be manifestly unjust to impose a life term and a minimum 17 year term which crown prosecutor Phil Shamy sought.

The crown said at the sentencing there was a high level or brutality involved in the killing and Smail had repeatedly stabbed Mr McCormick in the only place where he could still feel pain - his neck.

A psychologist's report for the court concluded that the killing arose from a combination of accumulated stress coupled with the disinhibiting effect of alcohol, after years of abstinence by Smail.

In its decision, the Court of Appeal noted the two men had known each other for about 20 years and were close friends.

Mr McCormick, who was 56, was a paraplegic because of a diving accident in 1971. After falling from his wheelchair he became a tetraplegic in 2000, and Smail was one of his regular carers.

The Appeal Court stated: "While Justice Fogarty found that Mr Smail was suffering from accumulated stress, he did not make any finding that Mr Smail had been exposed to prolonged and unsupportable stress.

"The reports of the psychiatrist and psychologist describe the respondent as suffering only from mild depression and would not support any finding of prolonged and unsupportable stress.

"Having carefully reviewed all the material which was available in the High Court, we find that there is an inevitable conclusion that Mr Smail was not driven to the depths of despair, nor acted impulsively nor with significantly diminished responsibility.

"He was certainly suffering from a degree of stress arising from his part-time caring responsibilities and it is unquestionable that his alcohol intake during the day had a disinhibiting effect on him."

The court said the murder of Mr McCormick could not be regarded as a mercy killing.

It found that the legislation provided for a minimum non-parole term of 17 years in such cases, but after considering factors relating to this case, and the terms imposed in other cases, it set the period at 13 years.

The Crown had conceded that a 17-year minimum term would be manifestly unjust.

- NZPA