Director of Public Prosecutions v Huby

[2018] VCC 1621

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01613

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS HUBY

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2018
DATE OF SENTENCE:	3 October 2018
CASE MAY BE CITED AS:	DPP v Huby
MEDIUM NEUTRAL CITATION:	[2018] VCC 1621

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs
For the Accused	Mr D. Gibson

HER HONOUR:

1Thomas Calum Huby, you have pleaded guilty to one charge of culpable driving.  The facts underlying the offending are these.  On 23 April 2016 you were driving a red Nissan Micra which belonged to your mother.  You were driving along Remembrance Drive in Cardigan, just east of an intersection with Draffins Road and in the back was your four year old daughter, Isabella Marie-Claire Huby.

2You had been to Ballarat with your partner, Catherine, and your two daughters, Isabella and Monique, and you borrowed your mother's car in order to drive there.  On return you backed out the car and then with Isabella in the back, started to drive back to Ballarat in order to return the car to your mother.

3A witness, Matthew Kennedy, who was travelling in a car in front of you, was himself travelling behind a truck.  A fairly regular speed was maintained for some period of time as it was not safe to overtake.  On about three occasions he checked his driver's side rear mirror, not you specifically but made checks.  Each time he did this he noticed the car you were driving moving marginally to the right and then back on to the left-hand side of the road.

4Subsequently Mr Kenney saw the Micra crossing the white line and then move in behind him.  Soon thereafter he heard a loud bang and when he checked his rear view mirror the car was stationary in the middle of the road.  The car driven by you had collided head on with a large tree situated at the northern side of the road.  You were able to get out of the car and you removed Isabella from the rear of the car and police and emergency services were called.  You were taken to hospital.

5Whilst at the hospital in the presence of your mother you were informed that your daughter Isabella had not survived the collision and had died.  You became uncontrollably distressed and said, "I didn't mean to fall asleep".

6Investigations were undertaken and ultimately in a record of interview you told police that you had had very little sleep in the previous few nights and also admitted to making a number of phone calls and receiving calls during the travel period.  The way in which this matter proceeded was that very soon after the charges were filed offers were made to plead guilty to a charge of dangerous driving causing death.  This offer was rejected.  Matters further proceed and ultimately you pleaded guilty to a charge of culpable driving at a contested plea hearing surrounding the issue of drugs having contributed to the fatigue situation when the accident occurred.

7At that hearing I found, and the prosecution agreed, that it was not possible to prove that any drugs in your system had contributed to the conditions underlying the accident.  The prosecution concedes that although you did not plead directly to culpable driving causing death at the time, negotiations and plea offers were made at a very early stage of the plea that you ultimately did make can be regarded by this court as an early plea.

8I now turn to your personal circumstances.  You are 26 years of age and were 24 at the time of this accident.  You are the only child born to your parents, who separated when you were tiny and your father has never been involved in your life.  You lived with your mother for the first two years in Warrnambool, then the two of you moved to Scarsdale where your grandparents lived.  You and your mother lived in a cabin at the back of the house which your grandfather had built.

9When you were five your grandmother died and you and your mother moved into the house and took over the housekeeping.  She also worked as a shop assistant.  Eventually your grandfather bought a mobile home and travelled Australia, and you and your mother moved to a new house in Scarsdale.  Unbeknownst to your mother, friends of neighbours who you made friends with were involved in some drug use and under their influence at the age of 13 you were introduced to marijuana.  Your mother did not become aware of this for quite some time.

10You attended school in the local area, leaving Sebastopol Secondary College part way through Year 11.  This was at the recommendation to the school; that you attend the BRACE Education program for children having trouble with mainstream schooling.  You completed that course but then were not accepted back at the high school and you left education entirely.

11For six months you undertook casual work at Spotlight and then you enrolled in a Youthworks course run by BEST employment in Ballarat.  You attended there on and off for three to four years, in the process meeting your partner, Cathy.

12For two and a half years you worked as an apprentice for a spray painter in Sebastopol, but he then employed a new and cheaper apprentice and you lost that job.  Since then you have undertaken labouring jobs, mostly cash in hand, and rarely ongoing.  Essentially you have undertaken casual labouring work with the same employer for about ten years.

13Your involvement with Catherine has been your only romantic relationship.  She remains supportive of you.  Isabella was born in 2012 and your second daughter, Monique, was born two years later.  Since the accident a third child, Rebecca, was born in 2018.

14I have received a number of references describing your devotion to your children.  Indeed, one of the great tragedies surrounding this event is, it is quite clear to me, that you were a particularly devoted father who had a very special relationship with your daughter, Isabella, and it appears from expert reports that I will refer to later in these sentencing remarks, that has been the case with your daughter, Monique, as well.

15You live with Catherine and her parents and your mother all in the one dwelling.  Your mother lives in a granny flat behind the house.  Your mother has, over the last couple of years, suffered a series of strokes and at the time of the plea was in hospital undergoing a life threatening operation to relieve blocked arteries in her neck.  I am most relieved to discover that she has recovered from this operation and is present in court with you today, as are Catherine and her parents.

16The accident occurred because, as was outlined, you had been to Kmart with the family and you were simply returning the car to your mother.  Isabella had been suffering night terrors and you were the only one who could settle her.  Catherine was also dealing with Monique, who was then age two and also a bad sleeper.  You had had about two and a half to three hours' sleep per night for the last three nights.  So this is not a situation where knowing that you were sleep deprived you were undertaking a massive drive in the country.  To all intents and purposes I am satisfied that this was an innocuous car journey by you, that is simply to return the car to your mother.

17As I have said, the issue on the plea hearing was whether your sleep deprived condition was aggravated by drug use.  All experts called upon agreed that your lack of sleep alone was sufficient to have caused an accident.  You have been a chronic, long term marijuana user but no expert could say whether that marijuana and the small amount of methamphetamine in your system aggravated the situation.  The prosecution agreed with my finding that the evidence could not prove this aggravating factor beyond reasonable doubt.  Ultimately the situation is that the negligence underlying the culpable driving is based on driving whilst sleep deprived.

18As a result of my finding, the facts scenario underlying this offending is one which could have been covered under the lesser charge of dangerous driving causing death.  The difference between the two charges is that there is a maximum penalty of 20 years' imprisonment for culpable driving, whilst there is a maximum penalty only of ten years for dangerous driving causing death.

19Your counsel, however, told me you simply did not have the heart to pursue the matter to trial.  You are distraught at the loss of your daughter and the part that you have played in her death.  I received material from clinical psychologist, Dr Rory Wyatt, on whom you attended for seven sessions up to 2 December 2016.  He diagnosed you as suffering from post-traumatic stress disorder arising from the motor vehicle accident.

20He also diagnosed you at the time as suffering a severe cannabis use disorder.  He said the condition of post-traumatic stress disorder is difficult to treat, a fact well known to these courts.  He said that symptoms of relapse are always very likely, particularly at a time of increased life stress.  He described your symptoms as including profound sleep disturbance, recurrent nightmares of the accident, loss of appetite, not eating for days at a time, extreme sadness, very high anxiety with panic attacks, hyper-arousal, daily suicidal ideation and significant emotional disturbance.  He said you had improved with treatment but not to a degree where it could be said in any way that the condition was resolved and, indeed, it has been his view that you required psychiatric intervention.

21In relation to the issue if imprisonment he said you were likely to be vulnerable to significant relapse of your post-traumatic stress disorder symptom and he anticipated there would be a significant deterioration of your mental health if you were incarcerated.  He said if you were to be gaoled he strongly recommended that all mental health services and supports be available to you.

22In relation to remorse Dr Wyatt said that you were riddled with self-blame, shame, guilt and struggling to reconcile the loss of your daughter and being the driving of the car in which she lost her life.  He concluded, "I can only imagine how this will plague him for the rest of his life".

23Your difficult situation has been worsened by two factors.  First, your mother, your main support throughout your life, has been gravely ill throughout this period of time.  Secondly, media reports have led to intense ill-treatment in the community.  You live in a small town, you have been abused personally and on social media.  In her reference, Catherine's mother Debra Bourke described this abuse as including death threats, comments about your children, and being pointed out even in Ballarat as that, "expletives", to describe you, "who killed his kids".  I think this is an extraordinarily cruel situation that you have found yourself in.

24I received a number of references, as I have already said, attesting to your devotion towards your children, including a reference from your partner, Catherine.  In particular, I received two references from professionals who have observed your interaction with your children.  After the fatal accident referral was made to Child Protection Services.  Family services case manager for Child and Family Services Toni Davis, wrote in her report that she spent a number of sessions with you, Catherine and your daughter, Monique.  She saw that Monique constantly sought out your attention and found comfort in your presence whilst she was upset.  She believed this incarceration would have a strong adverse effect on Monique, who has already experienced what she described as, "The confusing grief and loss of her sister, the experience of living with the complex grief and loss of her parents, her parents actual and perceived shaming and judgement from their community, and social media, the stressors of pending court cases and the fear of Thomas' incarceration.  If Thomas is incarcerated then this presents further adverse circumstances as Monique will have an absent parent and will have to learn to manage the shame and judgment placed upon her by society when a parent is incarcerated.  Furthermore, both Monique and Catherine will experience the grief and loss of Thomas' absence and they will lose her primary support person in relation to the grief and loss of Isabella".

25Ms Davis said that she believed that Monique's relationship with you was, "One of her strongest resilience factors, as demonstrated by Monique constantly seeking Thomas for comfort, support, affection and play".  Ms Davis believed that given Monique, who is now age 4, is going through a particularly significant development process which she described in her report, a loss of you on her life could “adversely affect her actual development at this point in time".

26Maternal health nurse, Marita Dyer, in her letter of 5 September 2018, stated that in her dealings with your family she has found it to be an exceptionally strong and united family in the face of adversity and described yours as a family who had, "worked extremely hard to change their home situation to promote the best and most supportive environment that they can despite great adversity".  She concluded, "Thomas has worked very hard to manage his own issues and to be totally committed to his role as a father and partner".

27That work included you admitting yourself to Tabor House Residential Withdrawal Unit from 16 February 2017 and you then remained on the individual treatment plan.  You have now completely ceased cannabis use, as indicated by the clean urine screens, up to September of this year, which were tendered during the plea.

28The prosecution conceded that, as I have said, your offer to plead guilty to dangerous driving causing death should be seen by this court as an early plea of guilty, and one which was indicative of remorse.  The prosecution also conceded that you have very good prospects of rehabilitation, and I agree with this.  There was argument that you would find prison more difficult than for the ordinary prisoner, so that the appropriate limbs of Verdins have application in your case.

29They have application in two ways.  Firstly, that you will find gaol more difficult because of your post-traumatic stress disorder and the likelihood that gaol will adversely affect that mental condition, and secondly, because of the concerns around your family and the important role you play in the functioning of that family.  Ultimately, however, it was submitted that the principle of general deterrence in charges of culpable driving causing death was so overwhelming that only a term of immediate imprisonment was appropriate in this case.  This was a proposition ultimately to which defence counsel agreed.  Indeed, in my view, sadly, this must be the case.  Culpable driving is an extremely serious charge, as indicated by the maximum penalty.

30However, I am going to impose a sentence I would not ordinarily impose in cases of this kind.  This is an unusual case.  Although you pleaded guilty to culpable driving, the circumstances of your offending, as I ultimately found them to be with the concurrence of the prosecution as to the state of the evidence led as to the inconclusive role drugs played in this tragedy, means this is a case which could comfortably have been dealt with with the lesser charge, as I have said, of dangerous driving causing death, which has half the maximum penalty applicable to culpable driving causing death.

31In the circumstances it is my view that yours is a case which falls at the very lowest end of the scale of seriousness applicable to the charge of culpable driving causing death.  In sentencing you I take into account:  first your early plea of guilty; second, your abiding and deep remorse for your offending; third, your very good prospects of rehabilitation.  You have only one minor prior conviction and that is for a driving offence in 2011 for which you were dealt with in the Magistrates' Court by way of a very minor penalty.  I do not regard it as relevant to the sentencing exercise before me.

32You have taken appropriate and successful steps to attend to your cannabis addiction and in the more than two and a half years since this accident you have lived a completely law abiding life with your partner under the most difficult of circumstances.  She continues to support you, as does her family.

33Four, your mental health difficulties, which include a post-traumatic stress disorder arising directly from the accident means that I am satisfied you will find a prison sentence considerably more difficult than the ordinary prisoner and that there is a significant chance the symptoms of your post-traumatic disorder will return and worsen in the prison environment.  Five, I also find, as I have said, that you are a devoted father who is important to your children and that you will suffer greater difficulties in gaol than would the ordinary prisoner by being unable to support, in particular, your daughter, Monique, who, according to expert opinion, is particularly reliant upon you.

34Six, I find there has been particular extra curial punishment in this case.  By extra curial I mean punishment which you have endured additional to any this court might impose.  The loss of a loved relative is not necessarily unusual in cases of this kind, but added to this has been the trauma that you have experienced as a result of personal and social media abuse and threats that you and your family have had to endure over the last two and a half years, and which appears to have been, as I have said, of the cruellest kind.  I am satisfied that the tragic events including the accident itself and subsequent events have left you a shattered man.

35I have also had recourse to a number of similar cases decided by these courts.  Overall this is a most tragic case where I am satisfied a loving and devoted family man has done what he would have considered to be the unthinkable, been a cause of his daughter’s death.  I therefore sentence you as follows, sir.  Can you stand up, please?  Before again sentencing I make it clear I find that there are more than usual strong mitigatory factors in this case.

36On the charge of culpable driving causing death I am sentencing you to five years' imprisonment.  I order that you serve 12 months of that sentence before becoming eligible for parole.  Thank you.

37Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of seven years' imprisonment and order that you serve a minimum term of five years.  Thank you.  Yes.  (Indistinct) thank you.

38(At 10.12 am Her Honour left the Bench.)

39(At 10.17 am Her Honour returned to the Bench.)

40HER HONOUR:  Sorry, ancillary orders.  I see there is a forfeiture order I will sign.  A s.464ZF application I do not see as being necessary in this man's case.

41MR NIBBS:  Yes, Your Honour.

42HER HONOUR:  I am not going to sign that, and I need to deal with your licence.

43MR NIBBS:  It is a minimum mandatory of two years disqualification.

44HER HONOUR:  Yes, absolutely.  Your licence is cancelled and you are disqualified from obtaining further licence for a period of two and a half years.  Right.  Are there any other further orders that are required - ancillary orders?

45MR NIBBS:  No, Your Honour.

46HER HONOUR:  All right, thank you.  I will hand that down to you.  Thank you very much.  Yes, thank you.  Take Mr Huby down.  Thank you very much.

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