UPDATE, WEDNESDAY OCTOBER 3: A father who fell asleep at the wheel and slammed into a tree, causing the death of his four-year-old daughter, has been sentenced to at least 12 months in jail.
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Thomas Callum Huby was sentenced in the County Court at Ballarat on Wednesday to five years in jail. He must serve a minimum of 12 months before he is eligible for parole.
In sentencing the 26-year-old, Judge Liz Gaynor said culpable driving was an extremely serious charge but this was an unusual case.
“This is a case that could have been dealt with the lesser charge of dangerous driving causing death,” Judge Gaynor said.
She described the offending at the lowest end of the scale, saying she would not ordinarily impose the sentence she did in similar cases.
Isabella Huby, 4, died after her father fell asleep while driving along Remembrance Drive at Cardigan and hit a tree on April 23, 2016.
After Huby was told Isabella had died, he said he did not mean to fall asleep.
Judge Gaynor found after a contested plea hearing last week, it was not possible to prove drugs in Huby’s system had contributed to the fatality.
“All experts called upon agreed your lack of sleep alone was sufficient to cause an accident,” Judge Gaynor said.
“You have been a chronic long-term marijuana user but no expert could say whether that marijuana and a small amount of methamphetamine in your system aggravated the situation.”
The judge said it was not a situation, where knowing Huby was sleep deprived, he was undertaking a massive drive in the country.
“To all intents and purposes I am satisfied that this was an innocuous car journey by you and this is to simply return the car to your mother.”
Judge Gaynor said it was a tragic case where Huby had been left a shattered man.
“This is a most tragic case where I am satisfied a loving and devoted family has done what he would have considered the unthinkable, being a cause of (his daughter’s) own death,” she said.
The judge said Huby’s difficult situation had been worsened by two factors, including his unwell mother and media reports, which had “led to intense ill-treatment in this community”.
Judge Gaynor took into account Huby’s early guilty plea, his remorse, good prospects of rehabilitation, his mental health deterioration in jail and the greater difficulties he faces in jail, including not being able to raise his two daughters.
Huby's mother, his partner Kathryn Brown and her parents were in court supporting him on as he broke down in tears after being sentenced.
He pleaded guilty to culpable driving causing death on the basis of negligence. His licence was disqualified for two-and-a-half years.
WEDNESDAY, SEPTEMBER 26: Drug impairment was not the reason a Beaufort driver fell asleep at the wheel causing the death of his four-year-old daughter, a judge has found.
Thomas Callum Huby was micro sleeping before the single-vehicle crash in Cardigan on April 23, 2016, which killed his daughter Isabella Huby.
The then 24-year-old had the presence of cannabis and methylamphetamine in his blood, which was indicated by a sample taken from him in hospital after the fatality.
But a County Court judge sitting in Ballarat on Wednesday said on the basis of expert evidence, she could not see how the prosecution could prove drugs were the cause of the crash.
“I don’t see how I can be satisfied beyond reasonable doubt … whether it had that rebound effect. We don’t know,” Judge Liz Gaynor said.
“I am satisfied Mr Huby has pleaded guilty that he was negligent when he drove because he was fatigued.”
The prosecution, which alleged the negligence comprised of fatigue and the fact Huby was driving under the influence of cannabis and methylampehtamine, did not disagree with the judge’s finding.
Defence barrister David Gibson said taking the prosecution at its highest, the conclusion Huby’s fatigue was due to drug impairment was speculative.
He said forensic medicine expert Associate Professor Morris Odell could not conclude as to whether Huby was undergoing a rebound effect or stimulation or both.
Huby told police in an interview he was a long term cannabis user, regularly smoking two or three bongs every night, and he smoked it in the days before the crash.
He denied using ice but admitted being “around it”.
The court was told Huby had three consecutive nights before the crash without adequate sleep because he was settling Isabella.
“He does feel a great sense of responsibility for the offending,” Mr Gibson said.
He said imprisonment would cause financial and emotional hardship for his partner and Isabella’s mother, Kathryn Brown, and their two young children.
Huby was driving along Remembrance Drive in the afternoon of April 23 when he collided head-on with a large tree.
He exited the vehicle by himself and removed Isabella from the rear of the vehicle. She died later in hospital.
A witness told police he saw Huby’s vehicle, a Nissan Micra, moving marginally to the right and then back onto the left side of the road.
Outside the court building after the hearing, a car struck several journalists and camera operators but no one was seriously injured.
Huby, now 26, pleaded guilty to culpable driving causing death on the basis of negligence. He will be sentenced in October.