After breaking into a Yellowknife home in the middle of the night, Bobby Zoe sexually assaulted a woman as she slept.

He fled with stolen cash.

The February 2015 attack, ZoeSA国际影视传媒檚 fourth conviction for a sexual offence, landed him in prison indefinitely.

Deemed a dangerous offender in 2017, Zoe, now 38, was sentenced to an indeterminate period behind bars.

He wonSA国际影视传媒檛 get out until a court rules his risk to reoffend can be managed outside of prison.

ZoeSA国际影视传媒檚 lawyer argued Tuesday the indeterminate sentence should never have been imposed.

SA国际影视传媒淭he sentencing judge made serious errors,SA国际影视传媒� Jennifer Cunningham told a panel of three judges in the Court of Appeal for the Northwest Territories.

Cunningham is representing Zoe in his appeal to have the sentence overturned. SheSA国际影视传媒檚 arguing Zoe should get a new hearing because the judge that sentenced him failed to consider alternatives to the indefinite prison term the Indigenous offender is currently serving in Edmonton.

In Canada, the Gladue principle directs judges to consider an Indigenous offenderSA国际影视传媒檚 background SA国际影视传媒� residential school attendance, abuse and addictions, intergenerational trauma and the impact of colonization on communities SA国际影视传媒� when coming to a sentencing decision.

The principle, which borrows its name from a landmark Supreme Court of Canada ruling in 1999, expands on a provision of the Criminal Code, which requires courts to weigh all available avenues other than imprisonment, SA国际影视传媒渨ith particular attention to the circumstances of Aboriginal offenders.SA国际影视传媒�

Getting Gladue reports SA国际影视传媒榙ifficultSA国际影视传媒� in territory

Cunningham recently commissioned a Gladue report for Zoe, but it wasnSA国际影视传媒檛 easy.

She said she couldnSA国际影视传媒檛 find an author in the territory to write the report. She had to go to a southern province to get it completed.

Cunningham said ZoeSA国际影视传媒檚 SA国际影视传媒渟ignificantSA国际影视传媒� Gladue factors were overlooked at sentencing SA国际影视传媒� SA国际影视传媒渕inimized and brushed aside.SA国际影视传媒�

A Presentence Report (PSR) SA国际影视传媒� a look into an offenderSA国际影视传媒檚 background and circumstances SA国际影视传媒� for Zoe was reviewed by the judge in 2017. The author wrote Zoe grew up in a caring traditional home, living on the land in Gameti.

But Cunningham said the pre-sentence report didnSA国际影视传媒檛 tell the whole story.

In the NWT, an Indigenous offenderSA国际影视传媒檚 Gladue factors are typically included in their PSR. In some jurisdictions, a sentencing judge receives a separate Gladue report dedicated solely to outlining Gladue factors.

While a PSR was submitted ahead of ZoeSA国际影视传媒檚 sentencing, a Gladue report wasnSA国际影视传媒檛. Cunnigham said the document wasnSA国际影视传媒檛 an adequate analysis of ZoeSA国际影视传媒檚 Gladue factors, leading the judge to sentence him without considering the systemic factors that brought him before the court.

Prosecutor Brendan Green, who is opposing the appeal on behalf of the Crown, conceded the judge should have paid more attention to the systemic issues faced by Indigenous people, but the oversight shouldnSA国际影视传媒檛 lead to ZoeSA国际影视传媒檚 indeterminate sentence being tossed.

Lack of sex offender programs in the NWT

Cunningham said at the time of sentencing 鈦燬A国际影视传媒� December 2017 鈦燬A国际影视传媒� Zoe had only ever been exposed to minimal, inadequate and ill-suited treatment programs while in custody at North Slave Correctional Complex (NSCC).

Zoe was never offered high-intensity, culturally-appropriate addictions or sex offender programming suited for his level of cognitive ability, said Cunningham. Undiagnosed SA国际影视传媒婩etal Alcohol Spectrum Disorder (FASD) may contribute to the intellectual challenges he experiences, the court heard.

The indeterminate sentence, she said, was handed down without adequate evidence Zoe posed an unmanageable risk of reoffending. A judge must be satisfied beyond a reasonable doubt that an offender is SA国际影视传媒渋ntractableSA国际影视传媒� 鈦燬A国际影视传媒� their risk to reoffend canSA国际影视传媒檛 be managed or controlled in the community 鈦燬A国际影视传媒� before imposing an indeterminate sentence.

Cunningham said the Crown failed to prove this.

She said a long-term offender designation would have been the right call. Sometimes likened to a SA国际影视传媒渓ong-term probation order,SA国际影视传媒� the classification is reserved for offenders who are likely to reoffend, but whose offending behaviour can be managed with a custodial sentence followed by supervision SA国际影视传媒� up to 10 years SA国际影视传媒� outside of prison.

Cunningham readily described Zoe as a high-risk offender, but said thereSA国际影视传媒檚 no evidence to suggest that risk canSA国际影视传媒檛 be curbed by strict conditions including a curfew. She recommended a two to three-year prison term, followed by supervision, so that Zoe could access the high-intensity programming at a federal level. She said heSA国际影视传媒檇 be able to receive the programming he needs much quicker.

SA国际影视传媒淵ouSA国际影视传媒檙e not a priority with an indeterminate sentence because youSA国际影视传媒檙e not really going anywhere,SA国际影视传媒� said Cunningham.

But Green said Zoe has consistently refused to participate in any kind of counselling or treatment SA国际影视传媒� a lack of interest or SA国际影视传媒渙utright denialSA国际影视传媒� to participate in programming that led the judge to hand Zoe an indeterminate sentence back in 2017. The judge found it highly unlikely Zoe would participate in any treatment.

SA国际影视传媒淗eSA国际影视传媒檒l tell anyone whoSA国际影视传媒檚 listening that heSA国际影视传媒檚 not interested in treatment SA国际影视传媒� after years, at some point youSA国际影视传媒檙e going to have to take him at his word,SA国际影视传媒� said Green.

Zoe is also appealing his conviction for the 2015 attack. HeSA国际影视传媒檚 representing himself. Zoe argued there wasnSA国际影视传媒檛 enough evidence to convict him.

SA国际影视传媒淚 was set up,SA国际影视传媒� Zoe told the panel.

The appeal panel, consisting of Justice Paul Bychok, Justice Ritu Khullar and Justice Dawn Pentelechuk SA国际影视传媒� all from outside

the NWT SA国际影视传媒� will hear further submissions from Cunningham and Green in four to five weeks time.