A wheelchair-bound paedophile, who posed as a 14-year-old boy online to dupe children into sending him explicit images, has been freed from prison after appeal court judges heard staff were unable to cope with his physical needs.
Richard Cabena, from Kinloch, near Blairgowrie, was caged for 20 months earlier this year, despite pleas from his lawyers that jail would be especially difficult for him.
The 42-year-old has spina bifida and needs help dressing, eating, washing and going to the toilet.
Now – in what has been described as a landmark ruling – the appeal court has quashed his sentence, finding that Perth Sheriff William Wood was wrong to send Cabena to prison.
He has been re-sentenced to a three year community payback order.
It emerged on Wednesday that before Cabena was sentenced in May, bosses at HMP Perth told the sheriff court they did not have the “physical capacity” to safely provide for his needs.
After he was locked up at the Perth jail, Cabena was housed in a larger-than-usual cell with a hospital bed and wet room.
As a protected prisoner, he was not allowed out of his cell to mix with other inmates and staff. His meals were delivered to him by officers.
On one occasion, his cell door was left open and other prisoners got inside. The appeal court heard Cabena was “subjected to frightening and threatening behaviour”.
Cabena complained that his care arrangements were “inflexible”.
In her ruling, Lady Dorrian said Sheriff Wood had been given the report from Perth Prison and had been told no facilities were available at jails in Edinburgh and Glenochil.
“The sheriff was thus faced with information which at the very least raised the possibility that immediate imprisonment might inevitably, at least in the short term, breach the appellant’s (Human) rights,” she said.
“Nevertheless, he proceeded to impose the sentence of imprisonment already decided upon.
“We are satisfied that he was wrong to do so even if a custodial sentence were otherwise merited.”
She called for the Scottish Prison Service and the Scottish Courts and Tribunals Service (SCTS) to put in place measures to ensure further cases involving “prisoners with extreme physical needs” were properly dealt with.
Perth Sheriff Court heard Cabena had set up a fake Facebook page and used it to get in touch with girls, then persuaded them to undress.
He admitted getting a 15-year-old girl to strip and participate in sexual activity on camera via Skype on August 16 2015. He also admitted a second charge of causing a 12-year-old girl to send naked pictures over Skype on February 21 2017.
Cabena, who was placed on the sex offenders’ register for 10 years, was caught when the elder girl’s mother found her exposing herself to the webcam and told the police.
A SCTS spokesman said: “We welcome the judgement and will work with the Scottish Prison Service to put appropriate measures in place to deal with cases of such a nature.”