Sex offender’s appeal success
Spina bifida sufferer won’t be jailed
Appeal judges have quashed the prison sentence of a wheelchair-bound sex offender who was jailed for persuading underage girls to strip on camera.
Richard Cabena (44), who suffers from spina bifda, was given a 20 month sentence at Perth Sheriff Court in May 2019 after pleading guilty to sex offences.
As well as suffering from spina bifda, he is unable to perform everyday task such as washing himself and going to the toilet unaided.
Perth Sheriff Court heard how Cabena claimed he was just 14, and groomed a 12-year-old schoolgirl during online chats.
He also persuaded the girl to send him revealing pictures of herself before striking up a friendship with a 15-yearold girl on Facebook telling her he was 18.
The man asked her to pull down the zipper on her pyjama top and dared her to touch herself inappropriately during a Skype call.
He had persuaded both victims to turn on the camera on their laptops but he claimed his camera was broken.
Sheriff William Wood deferred sentence on Cabena but decided to jail him because of the serious nature of the charges.
The sheriff also placed him on the sex offenders’ register for 10 years.
Lawyers acting for Cabena, who had no previous convictions, took his case to the Court of Criminal Appeal in Edinburgh to claim that their client should not have been sent to prison.
Defence solicitor advocate Iain Paterson said that experts believed Cabena could have been rehabilitated through a community based disposal.
He also said there were concerns that prison staff could not cope with his client’s “serious physical health needs”.
On Wednesday, appeal judges Lady Dorrian, Lord Brodie and Lord Turnbull issued a written judgement in which they agreed with the submissions made by the man’s lawyers.
Sentencing the man to a three year community payback order - which includes supervision by the authorities and participation in a sex offenders education program - Lady Dorrian said: “How it is in the face of the clear identification of treatment needs, an available and suitable programme of work to address these and to reduce the risk of future offending with conditions designed to ensure suitable management within the community, the sheriff was able to conclude that only a custodial sentence would serve is difficult to understand.
“Moreover, we say that before taking any account of the appellant’s physical difficulties. When one takes them into account, and recognises the extent to which imprisonment would constitute a heavier punishment for them than for an offender without his condition (something the sheriff appears not to have acknowledged), the position becomes even clearer.
“We are satisfied that the appeal must succeed.”
The appeal court also heard that the sheriff decided to imprison the man despite receiving information from HMP Edinburgh and HMP Glenochil that they lacked the facilities to cope with the man’s physical needs.
The court heard that to send the man to prison in such circumstances may breach article three of the European Convention on Human Rights - the right to avoid inhumane or degrading punishment.