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 鈥渃hange in his personal circumstances鈥� arising from the murder of his sister last month and that his mother will suffer hardship if he鈥檚 jailed.

The court heard Garie鈥檚 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鈥檚 death, he and his brother have 鈥渁ssumed responsibility for providing care and financial assistance to their mother who has taken a leave from her employment,鈥� Justice Sunni Stromberg-Stein noted in her Nov. 10 .

She also noted that once Bill C鈥�5 introduced by the Trudeau government is proclaimed a conditional sentence order (CSO) would become 鈥渁n available sentencing option鈥� for his offences but the bill is presently in its third reading in the Senate and a CSO is not available to him now.

鈥淢r. Garie reports he was recruited to sell cocaine and oxycodone by an older relative, and did so for six to eight months,鈥� Stromberg-Stein noted. 鈥淗e 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鈥憀evel trafficker.鈥�

Stromberg-Stein also noted in her reasons that the sentencing judge described Surrey and the Lower Mainland 鈥渁s 鈥榦verrun鈥� with the type of drugs Mr. Garie was trafficking, and observed that dial鈥慳鈥慸ope operations make it easy to distribute these drugs in residential areas, and to people who are addicted.鈥�

鈥淭he judge made no error in concluding that, in Mr. Garie鈥檚 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,鈥� the higher-court judge decided. 鈥淭he nine鈥憁onth prison sentence, followed by six months鈥� probation, in Mr. Garie鈥檚 case, is far from being demonstrably unfit. If anything can be said, it is very lenient.鈥�

Stromberg-Stein also found 鈥減otential hardship on Garie鈥檚 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鈥檚 moral culpability.

鈥淲hile 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鈥慶ustodial sentence in a case such as this,鈥� she decided. 鈥淪uch 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.鈥�

The appeal court judge determined that the Surrey provincial court judge was not in error, and that a CSO, suspended sentence or a 90鈥慸ay intermittent sentence 鈥渋s not a fit sentence.

鈥淭he sentence imposed was fit. It was proportionate to the gravity of the offences and the moral culpability of Mr. Garie,鈥� she concluded. 鈥淚 would dismiss the appeal.

Justice Christopher Grauer and Justice Ronald Skolrood agreed.

tom.zytaruk@surreynowleader.com
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