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, Zoe鈥檚 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 won鈥檛 get out until a court rules his risk to reoffend can be managed outside of prison.

Zoe鈥檚 lawyer argued Tuesday the indeterminate sentence should never have been imposed.

鈥淭he sentencing judge made serious errors,鈥� 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. She鈥檚 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 offender鈥檚 background 鈥� residential school attendance, abuse and addictions, intergenerational trauma and the impact of colonization on communities 鈥� 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, 鈥渨ith particular attention to the circumstances of Aboriginal offenders.鈥�

Getting Gladue reports 鈥榙ifficult鈥� in territory

Cunningham recently commissioned a Gladue report for Zoe, but it wasn鈥檛 easy.

She said she couldn鈥檛 find an author in the territory to write the report. She had to go to a southern province to get it completed.

Cunningham said Zoe鈥檚 鈥渟ignificant鈥� Gladue factors were overlooked at sentencing 鈥� 鈥渕inimized and brushed aside.鈥�

A Presentence Report (PSR) 鈥� a look into an offender鈥檚 background and circumstances 鈥� 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 didn鈥檛 tell the whole story.

In the NWT, an Indigenous offender鈥檚 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 Zoe鈥檚 sentencing, a Gladue report wasn鈥檛. Cunnigham said the document wasn鈥檛 an adequate analysis of Zoe鈥檚 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 shouldn鈥檛 lead to Zoe鈥檚 indeterminate sentence being tossed.

Lack of sex offender programs in the NWT

Cunningham said at the time of sentencing 鈦犫�� December 2017 鈦犫�� 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 鈥婩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 鈥渋ntractable鈥� 鈦犫�� their risk to reoffend can鈥檛 be managed or controlled in the community 鈦犫�� 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 鈥渓ong-term probation order,鈥� 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 鈥� up to 10 years 鈥� outside of prison.

Cunningham readily described Zoe as a high-risk offender, but said there鈥檚 no evidence to suggest that risk can鈥檛 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 he鈥檇 be able to receive the programming he needs much quicker.

鈥淵ou鈥檙e not a priority with an indeterminate sentence because you鈥檙e not really going anywhere,鈥� said Cunningham.

But Green said Zoe has consistently refused to participate in any kind of counselling or treatment 鈥� a lack of interest or 鈥渙utright denial鈥� 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.

鈥淗e鈥檒l tell anyone who鈥檚 listening that he鈥檚 not interested in treatment 鈥� after years, at some point you鈥檙e going to have to take him at his word,鈥� said Green.

Zoe is also appealing his conviction for the 2015 attack. He鈥檚 representing himself. Zoe argued there wasn鈥檛 enough evidence to convict him.

鈥淚 was set up,鈥� Zoe told the panel.

The appeal panel, consisting of Justice Paul Bychok, Justice Ritu Khullar and Justice Dawn Pentelechuk 鈥� all from outside

the NWT 鈥� will hear further submissions from Cunningham and Green in four to five weeks time.