A Dundee sex attacker who raped a sleeping woman has been jailed for three years.
A judge was told that Keiran Smart, who had previously had sex with the victim, continued to deny his guilt over the offence.
But Lord Burns said jurors at his earlier trial must have concluded from the terms of messages he sent that he had “no reasonable belief she was consenting at the time”.
First offender Smart, 21, formerly of Caldrum Street in Dundee, was found guilty of assaulting the 21-year-old woman while she was asleep and raping her at a house in Angus in October 2016.
He was acquitted of a attempting to rape another woman, now aged 24, between November 1 and December 31 in 2015 at a flat in Dundee.
Defence counsel Ronnie Renucci told the High Court in Edinburgh: “He is clearly a young man who has a history of mental health problems.”
He said Smart had been diagnosed with ADHD and had suffered from depression and anxiety. He added: “He had a number of panic attacks while in custody.”
Mr Renucci said Smart had been “extremely apologetic” in messages he had sent the following day after the incident.
The defence counsel said: “It would be unfair to say he had no regards to the feelings of the victim.”
He argued that the offence Smart was convicted of could be distinguished from other rape cases that involved a degree of force or violence and said: “Clearly that was not the case in this offence. There is no suggestion of force.”
Mr Renucci said any prison sentence imposed on Smart would “impact greatly on him”.
He said the offence appeared to be entirely out of character for him and pointed out that he had intercourse with the woman the day before.
Lord Burns said there was reason to think that if Smart engaged with programmes any risk was likely to be diminished.
The judge said he would impose an extended sentence so that after his release he would be subject to monitoring, supervision and treatment that would diminish risk.
One woman told Smart’s earlier trial that he could be angry or aggressive when he had a drink.
Smart was placed on the sex offenders register indefinitely.