The Gilmore principle of restraint in re-sentencing after retrial does not constrain a second trial judge from drawing different inferences from the same primary facts. Where a second trial judge conscientiously makes findings of greater culpability than the first trial judge, a heavier sentence is warranted. A sentencing judge is not bound by a Crown concession as to the appropriate sentence but must raise with counsel the possibility of a heavier sentence to afford procedural fairness.
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