The Northwest Territories Court of Appeal has overturned a court decision declaring a Gameti, N.W.T., man a dangerous offender.
Bobby Zoe, 38, was declared a dangerous offender two years ago, after being convicted of his fourth sexual assault.
Zoe entered a Yellowknife apartment at about 5:30 a.m. on Feb. 15, 2015, as the couple who lived there slept. He entered their bedroom and touched a woman's vagina over her clothing and the blanket. When she awoke she screamed, waking her partner, who chased Zoe into the stairwell, pulling off his backpack as he chased him out of the apartment building.
Police arrested Zoe near the building just minutes later. The victim's partner identified him as the man he had chased out of the building. Beer taken from the apartment was found in the backpack. Police also found $460 on Zoe which was also believed to have been stolen from the apartment.
Zoe appealed both his conviction and his sentence as a dangerous offender. The panel of three Court of Appeal judges upheld Zoe's convictions for breaking and entering into a dwelling and committing a sexual assault inside, breaking and entering to commit theft and breach of probation.
But the appeal judges said Deputy Judge J.R. McIntosh made several mistakes when he designated Zoe a dangerous offender and, as a result, sentenced him to an unspecified amount of time in prison. People declared dangerous offenders are kept in prison until authorities are satisfied they no longer pose a significant risk of hurting others.
Criminal record met dangerous offender criteria
At his dangerous offender hearing, Zoe's lawyer conceded that Zoe's criminal record met the criteria for a dangerous offender designation.
Zoe was convicted of sexual assault in 2005, after approaching a woman from behind one afternoon and grabbing her buttocks. Three years later he touched a 13-year-old on her breasts, buttocks and vagina after she passed out while drinking with Zoe and two others. In 2011 Zoe was sentenced to just over three years in prison for sexually assaulting and attempting to rob a woman he grabbed from behind in downtown Yellowknife.
But in its decision, the Court of Appeal cited a Supreme Court of Canada (SCC) decision that clarified many of the issues raised in Zoe's case. The SCC said that when considering dangerous offender applications judges must, in addition to looking at an offenders past criminal behaviour, also consider their chances of being rehabilitated.
The Court of Appeal judges said the judge who declared Zoe a dangerous offender failed to do that. The appeal judges also said the sentencing judge mistakenly put the onus on Zoe to show why he should not get an indeterminate sentence, instead of considering whether a less severe sentence would adequately protect the public.
The Court of Appeal ordered a new sentencing hearing for Zoe. No date has been set for it.