A man sentenced to nine months in jail and six months probation for selling cocaine and oxycodone to undercover Surrey Mounties on four occasions in a dial-a-dope drug trafficking operation has been denied a lesser sentence he sought on appeal to take care of his mother after his sister was murdered.
Tenzin Jamyang Garie, 26, pleaded guilty to drug trafficking and possession, aiming for 18 months of house arrest but a Surrey provincial court judge gave him the jail sentence instead. On appeal, in the Court of Appeal for British Columbia in Vancouver, Garie sought a suspended sentence or a 90-day intermittent sentence, given a “change in his personal circumstances” arising from the murder of his sister last month and that his mother will suffer hardship if he’s jailed.
The court heard Garie’s sister was the victim of a double homicide in Burnaby.
Garie was sentenced Nov. 16, 2021, filed his notice of appeal five days later, was granted leave to appeal and was then released on bail on Nov. 30 last year. He sought to serve his sentence in the community because, since his sister’s death, he and his brother have “assumed responsibility for providing care and financial assistance to their mother who has taken a leave from her employment,” Justice Sunni Stromberg-Stein noted in her Nov. 10 reasons for judgment.
She also noted that once Bill C‑5 introduced by the Trudeau government is proclaimed a conditional sentence order (CSO) would become “an available sentencing option” for his offences but the bill is presently in its third reading in the Senate and a CSO is not available to him now.
“Mr. Garie reports he was recruited to sell cocaine and oxycodone by an older relative, and did so for six to eight months,” Stromberg-Stein noted. “He never used the drugs he was selling. He earned approximately $1,000 a week selling drugs, and he saw it as an easy way to make money. The Crown described Mr. Garie as a low‑level trafficker.”
Stromberg-Stein also noted in her reasons that the sentencing judge described Surrey and the Lower Mainland “as ‘overrun’ with the type of drugs Mr. Garie was trafficking, and observed that dial‑a‑dope operations make it easy to distribute these drugs in residential areas, and to people who are addicted.”
“The judge made no error in concluding that, in Mr. Garie’s case, a CSO was inconsistent with the fundamental purpose and principles of sentencing, having regard to the gravity of the offences and the high moral blameworthiness of Mr. Garie,” the higher-court judge decided. “The nine‑month prison sentence, followed by six months’ probation, in Mr. Garie’s case, is far from being demonstrably unfit. If anything can be said, it is very lenient.”
Stromberg-Stein also found “potential hardship on Garie’s mother has no bearing on the outcome of this appeal, which is to determine whether the judge erred in principle or imposed a demonstrably unfit sentence having regard to the gravity of the offences and Mr. Garie’s moral culpability.
“While the situation is tragic, it does not give rise to the sort of exceptional personal circumstance that would justify going outside the identified generally applicable range of sentence to craft a non‑custodial sentence in a case such as this,” she decided. “Such evidence cannot be used to reduce an otherwise fit sentence to a point where it is no longer fit and proportionate to the gravity of the offence and the moral culpability of the offender.”
The appeal court judge determined that the Surrey provincial court judge was not in error, and that a CSO, suspended sentence or a 90‑day intermittent sentence “is not a fit sentence.
“The sentence imposed was fit. It was proportionate to the gravity of the offences and the moral culpability of Mr. Garie,” she concluded. “I would dismiss the appeal.
Justice Christopher Grauer and Justice Ronald Skolrood agreed.
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