A man convicted of rape after removing a condom during sex has lost an appeal against his prison sentence.

The conviction of Jessie Campos, 50, for the rape of a sex worker is considered legally significant because it was the first "stealthing" rape prosecution in New Zealand.

"Stealthing" is the sneaky removal of a condom during sex, after consent to intercourse has been given as long as a condom is worn.

Campos paid for a one-hour session with his victim at a Wellington brothel in December 2018.

She told him repeatedly that he must wear a condom but Campos twice tried to remove the condoms she provided. He was successful the second time.

His distressed victim told Campos to get out, sought help from her manager, and they called the police.

Campos was found guilty of rape after a jury trial in the Wellington District Court and in April last year was sentenced to three years and nine months in prison.

Judge Stephen Harrop, in sentencing, said Campos' offending was aggravated by planning and premeditation, the mental harm it caused, and the risk of other harm to the victim, including pregnancy, sexually transmitted disease and loss of employment.

Campos appealed, however, on the grounds that his sentence was "manifestly excessive", saying the starting point for calculating the prison sentence was too high and the judge had given an insufficient discount for personal circumstances.

Judge Harrop calculated the sentence by setting a starting point of six years and six months, and then deducting a total of 42.5 per cent for previous good character, personal circumstances, time spent on restrictive bail, and for the disproportionate effect imprisonment had on foreign nationals.

Campos' defence lawyer had argued that a cultural report on the man, who arrived from the Philippines in 2016, was directly relevant to the sentencing.

The report said that "in the Philippines, his behaviour would have been regarded as perhaps more normal than is the case in New Zealand".

Judge Harrop disagreed.

"I can't proceed on the basis that raping sex workers is any more acceptable [in the Philippines] than it is here," he said.

Three Court of Appeal judges have now reviewed Campos' sentence and have upheld the jail term.

"There was never any consent to the particular act which constituted rape," the appeal court judgement said. "The victim consented to protected sex. She never consented to unprotected sex."

The appeal judges said the starting point was within an acceptable range and that the discounts applied by the sentencing judge were "generous".

Campos was living in New Zealand to maximise his earnings, and was sending money to his wife and family back home.

He is likely to be deported when he finishes serving his sentence.

- Ric Stevens, Open Justice

Sexual harm – do you need help?

If it's an emergency and you feel that you or someone else is at risk, call 111.

If you've ever experienced sexual assault or abuse and need to talk to someone contact Safe to Talk confidentially:

• Call 0800 044 334
• Text 4334
• Email [email protected]
• For more info or to web chat visit www.safetotalk.nz