The principle in R v Gilmore that a sentence on retrial should ordinarily not exceed the first trial sentence is a prima facie approach, not an inflexible rule. It does not constrain the sentencing judge on a second trial where the first trial sentence was so inadequate as to bespeak appellate intervention. A sentencing judge who treats an inadequate first trial sentence as an absolute ceiling commits an error of principle reviewable under House v The King.
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