Serial sex attacker declared long-term offender by judge

With a “significant history of violence toward women and girls,” Bobby Zoe has been designated a long-term offender after the NWT Court of Appeal overturned his earlier designation as a dangerous offender.

A designation as a long-term offender is the less severe of the two. Zoe, 40, will now be subject to a long-term supervision order for 10 years following his release, which will be in 90 days’ time.

On Wednesday afternoon, Territorial Court Judge Donovan Molloy expressed concern that he had seen no plan from the federal corrections service regarding how Zoe would be supervised or treated. The corrections service, not the court, puts such plans in place for long-term offenders.

“Where Mr Zoe will be living on his release from prison will be determined by the Correctional Service of Canada,” said the judge.

“With the relative lack of services in Yellowknife and its ‘triggers’ that contribute to Mr Zoe’s offending, it is difficult to imagine that he will be able to return to the Northwest Territories for some considerable period of time.”

Molloy said the Correctional Service of Canada must determine when it is most suitable for Zoe to return to Yellowknife.

“An absence of adequate intensive supervision leaves the female public at an unacceptable risk of sexual violence from Mr Zoe,” Molloy said. “A treatment plan that is not tailored to Mr Zoe’s particular circumstances also endangers the public while setting up Mr Zoe for failure and a return to a pattern of ‘life in prison by instalment.’”

In 2016, Zoe was convicted of breaking into a house in Yellowknife’s Old Town a year earlier and sexually assaulting a sleeping woman. He was also convicted of burglary and breaching probation conditions. It was for those crimes that he was resentenced on Wednesday, some six years after they took place.

Zoe also had two prior convictions for sexual assault and one for sexual interference.

Long-term versus dangerous

Following the 2016 conviction, the Crown subsequently sought to have Zoe designated a dangerous offender, an application that was granted in late 2017.

But Zoe’s Whitehorse-based lawyer, Jennifer Cunningham, has argued a long-term offender designation would a better solution so he can access culturally appropriate treatment.

The long-term offender classification is for criminals who are likely to reoffend but who can be managed with a custodial sentence followed by supervision outside prison. A dangerous offender, on the other hand, is one with a pattern of repetitive behaviour that “constitutes a threat to the life, safety, or physical or mental well-being of other persons.” Those offenders can be sentenced to a penitentiary for an indeterminate period.

Prisoners with indefinite sentences are often not considered a priority for counselling and treatment in prison, noted the lawyer.

Zoe’s dangerous offender declaration was overturned by the NWT Court of Appeal in January 2020.

Molloy was presented with a joint submission from the Crown and defence recommending that Zoe instead be designated a long-term offender.

“It is a decision that the parties and court recognize as requiring the placement of a great deal of faith in the Correctional Service of Canada,” said Molloy.

“[With] Mr Zoe’s cognitive deficits, his cultural needs and the lack of services in Yellowknife, it will be a challenge to craft a plan that meaningfully addresses his risk and his treatment requirements.

“In terms of the control of risk, among other factors, Mr Zoe is now noted to be compliant with medication regimes, has finally acknowledged the role that substance abuse has played in his offence history, and has expressed an openness to treatment. 

“Relatively speaking, in terms of Mr Zoe’s history and antecedents, these changes legitimately form part of the basis upon which the court can now conclude … that there is a reasonable possibility of eventual control of the risk in the community.”

Ninety days but in custody since 2015

Last fall, the Court of Appeal zeroed in on Zoe’s prospects for rehabilitation after receiving an updated Gladue report for the offender. That new report revealed “a much more nuanced and complex history” of Zoe’s upbringing.

The longstanding Gladue principle, named after Cree woman Jamie Tanis Gladue, orders judges to consider systemic or background factors that may bring an Indigenous offender before the courts and adjust sentences accordingly.

The original report contained no history of residential schools in Zoe’s adoptive family, leading the original Territorial Court sentencing judge to conclude there was nothing in his background that should lower his “blameworthiness with respect to the predicate offence.”

The information before the sentencing judge was that Zoe was adopted as a baby into a stable, loving family in the community of Gamètì, living a traditional life moving between camps and traplines. 

The updated Gladue report from the fall of 2019 provided “fresh evidence” that Zoe’s birth parents were young and unmarried and both had residential school experience. He connected with them at age 16 when he started attending school. It was with his biological father and uncle that he was exposed to drinking and cannabis.

In sentencing Zoe to 90 days for sexual assault, break and enter, theft and breaching probation, Molloy stressed the short sentence “must be considered in the context that Mr Zoe has been in custody on the predicate offences in one form or another since 2015.”

He added: “The 90-day determinate sentence was specifically recommended by the parties as it represents the amount of time that the Correctional Service of Canada said it would require to draft their long-term supervision plan for Mr Zoe.”

Molloy also ordered a DNA sample be taken for the national crime databank, a lifetime entry in the sex offender registry and a 10-year firearms prohibition.

He ordered that a copy of all expert reports and testimony and “any observations and recommendations of the court with respect to the reasons for the long-term offender finding,” together with a transcript of the trial, be forwarded to the Correctional Service of Canada.