The principle of restraint in sentencing after a retrial operates only as an upper limit — it prevents an offender being worse off by reason of a successful appeal but does not require a proportionate reduction in the total effective sentence where the offender is convicted of fewer offences at retrial. The sentencing judge exercises an independent discretion and is not required to sentence by reference to the earlier sentence. The approach in Warne v The Queen [2020] SASCFC 124, which required the retrial judge to work from the original sentence, should not be followed in WA.
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