The statutory precondition for a s 165 warning under the Evidence Act 1995 (NSW) requires a request under s 165(2); matters going generally to the reliability of a witness's evidence are routinely the subject of submissions without the need for a s 165 warning. A sentencing judge may find that Bugmy considerations reduce moral culpability while concluding that countervailing considerations of general and specific deterrence and community protection must be reflected in the sentence. Issues not raised before the sentencing judge, including the impact of COVID-19 on conditions of incarceration, cannot be agitated for the first time on appeal.
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