A Launceston man convicted of the violent rape of a 76-year-old woman had his appeal dismissed by the Court of Criminal Appeal on Wednesday.
Christo Brown was sentenced to eight years' jail with a non-parole period of four years for rape, aggravated burglary and demanding property with the intent to steal by Justice Robert Pearce in September 2018.
Brown, who was 18 at the time of the offences, entered the Launceston woman's home in July 2015. He asked her to take off her clothes, raped her and demanded $250. The woman produced notes from her purse which Brown did not take.
The Court of Criminal Appeal returned a two to one verdict against the appeal, before dismissing Brown.
Brown appealed his rape conviction on the grounds the judge erred in law by the admitting of evidence intended to prove his tendency to sexually assault sleeping women, which the appellant argued should not have been used at trial, and that his eight-year sentence was manifestly excessive in all circumstances.
The evidence in question related to Brown's prior conviction of indecent assault in Queensland where the accused got into a women's bed at a youth hostel while she was sleeping and assaulted her.
Acting Justice Shane Marshall said both grounds of appeal lacked merit, thus he would dismiss the appeal.
Acting Justice Marshall said he agreed with the trial judge's ruling to admit the tendency evidence because its probative value outweighed any prejudicial effect.
Although Brown's sentence is higher than sentences in recent years for a single count of rape, there were a lack of mitigating factors apart from Brown's youth, Acting Justice Marshall said.
"There was no error in the exercise of the trial judge's sentencing discretion," Acting Justice Marshall said.
"The appellant pleaded not guilty and forced an elderly complainant to give evidence. There was no evidence of remorse.
"He was psychologically assessed as at a high risk of committing further sexual violence. A pre-sentence report said that his long-term sexual recidivism was in the high category. The trial judge assessed his risk of re-offending as high."
Justice Michael Brett said he had the advantage of reading a draft of reasons by Acting Justice Marshall and agreed with the conclusions reached with respect to both grounds to appeal.
Justice Gregory Geason supported a re-trial and argued the admission of the tendency evidence amounted to an error.
"While I acknowledge the strength of the other aspects of the Crown case, the admission of the tendency evidence was highly prejudicial to the appellant," Justice Geason said.
"I cannot say this has not resulted in a miscarriage of justice."
Justice Gleason said the tendency evidence lacked the "close similarity" needed by the Court to allow it to be admitted as evidence on the basis it possessed significant probative value.
"Not only does the evidence relating to the offence in Queensland fall short of establishing a pattern of behaviour, there is not a striking pattern of similarity between the incidents," Justice Geason said.
"An opportunistic sexual assault on a female is a generic description of offending behaviours which includes a significant range of behaviour.
"There are distinct differences in the gravity of the misconduct and in the qualitative character of the surrounding circumstances of this case."