Tetraplegic's friend gets 12 years for his murder

Eric Neil Smail will serve 12 years rather than a life term for murdering his tetraplegic friend Keith McCormick.

Justice John Fogarty took "accumulated stress" into account when he imposed the jail term with a minimum seven-year non-parole term at a sentencing in the High Court at Christchurch today.

"You are entitled to the discretion Parliament has given the court in cases such as this," he said.

Smail, 48, had pleaded guilty in March, having stabbed Mr McCormick six times in the neck and then cut his throat last July. He told friends at a bar that he was going to do it but no one took him seriously until he phoned to say it was done.

Smail had been caregiver for the former Paralympic athlete, in the evenings and overnight, since November 2004.

After doing the job without support, a psychologist's report noted that Smail "had difficulty distinguishing between his own emotional needs and those of Mr McCormick".

The psychologist concluded that the killing arose from a combination of accumulated stress coupled with the disinhibiting effect of alcohol -- after years of abstinence, Smail had gone to several bars with friends and workmates and drank a lot on the day of the murder.

There were gasps in the courtroom as the sentence was handed down.

"By law, this murder of a particularly vulnerable person requires me to impose a 17-year minimum non-parole period unless the court is satisfied that it would be manifestly unjust to do so," said Justice Fogarty.

Crown prosecutor Phil Shamy had argued that 17 years was required to mark the high level of brutality and cruelty involved in the killing but Justice Fogarty disagreed.

He did not accept the Crown submission that Smail stabbed and cut the throat deliberately in the place where Mr McCormick was still able to feel pain.

"The evidence is that you thought you were doing an act of mercy in a way that minimised any awareness that he was about to die and was being killed. There is no indication that you intended to cause him pain when killing him."

The pathologist's report said Mr McCormick would have lost consciousness almost immediately from the sudden loss of blood to the brain and would have died in moments.

Smail worked as caregiver for a man who was his friend, and when he was at the police station afterwards, he said: "I have just killed my mate."

To his friends in a bar shortly before the murder, he said: "I just decided to kill him. I know he would not ask me."

He said later that it had been difficult to watch his friend's deterioration: "It was hard being there, being with him."

Justice Fogarty told Smail he had to take into account the seriousness of his conduct.

"You took Keith McCormick's life. On the evidence before me probably he did not want to die. It wasn't a suicide pact. The right to life is the most fundamental of our rights and you took that away."

The Crown pointed to the part played by alcohol.

"There may well have been a desire to free this man from his disability -- being caged in his body -- but these matters were only brought to fruition by alcohol," Mr Shamy said.

Defence counsel Tim Fournier emphasised the prolonged and unsupportable stress placed on Smail as a caregiver. He also said the intake of alcohol had put Smail into "more pronounced depressive state" on the day.

But Justice Fogarty said: "The law is quite clear -- the court has to put to one side the cause and effect of alcohol."

Outside the court, a friend of Smail's, John Durning, said he had reacted to the news of the killing with total disbelief.

"Eric could fire up but not to an extent like this."

Smail had written from prison on remand to say that he had done the crime and would do his time.

"He was a caregiver with no formal training. It's a lot of stress to put on a person," Mr Durning said.

- NZPA