STATE OF TASMANIA v MITIELE SAULA WAQABACA 5 AUGUST 2026
COMMENTS ON PASSING SENTENCE CUTHBERTSON J
Mitiele Waqabaca, you have pleaded guilty to a charge of assault. On 17 November 2024, you unlawfully assaulted the complainant, Mr Stebbings, by punching him to the head at the Beltana Hotel. You had consumed a large amount of alcohol prior to the assault, first at home and then at the hotel. You had been playing pool with the complainant and two other men. You knew the complainant; he was someone you had previously met at the hotel. You had not met the other two men before. Shortly before the assault, a dispute arose between you and the complainant about the rules of the game.
The relevant events were captured on the hotel’s CCTV. I have viewed that footage. It shows you becomingly increasingly agitated throughout the course of the discussion with the complainant, so much so that one of the other males moved towards you and attempted to placate you. You shrugged him off and continued exchanging words with the complainant. You were standing very close to the complainant and pointing directly at his face. The complainant was later standing with his arms crossed. The other male again intervened, this time moving to hold your arms. Once your arms were released, you again jabbed your finger aggressively in the direction of the complainant’s face. You then walked a short distance past the man who had been restraining you to the pool table where you continued speaking and pointing at the table. You were facing the complainant and the other males while you were doing this. The complainant and the male who had previously restrained you moved towards where you were standing near the pool table. The other male was gesticulating in a manner which suggests he was trying to placate you. The complainant came within half a metre of you with his arms still crossed. You pointed at him with your left hand briefly then punched him with significant force to the head with your right hand. He was immediately rendered unconscious and fell to the ground.
An ambulance was called. The complainant was unconscious for approximately three minutes. You did not stay around to render assistance but walked out of the hotel. The complainant was taken to the Royal Hobart Hospital. He sustained bruising to the right side of his cheek and a small laceration. A CT was taken of his head which demonstrated a small bruise on the right frontal lobe of the brain and a bleed near his brain. He also had an associated subtle, non-displaced fracture through the bone at the right temple and behind the eye. Although the bleed to the brain increased slightly, it eventually stabilised. Fortunately, the complainant does not appear to have required surgery. He was discharged from hospital but deemed not fit for work for one month. He has no memory of the incident. I have not been provided with any victim impact statement from the complainant, but I have no doubt the injuries would have caused him pain and distress, particularly in the immediate aftermath and while the bleed on the brain was being monitored.
You were interviewed by police on 11 December 2024. You described drinking during the course of the afternoon and evening but could not recall how much you drank at the hotel. You claimed the complainant kept jumping in your face, which you did not like. You claimed you hit the complainant as you were swinging to get him away from you. You claimed to have not punched the complainant intentionally. The State does not accept this explanation and it is, in my view, inconsistent with the footage of the incident. You told police you had a blackout when the incident happened, which you assumed was due to alcohol. You agreed you had been arguing about a rule change. When showed the footage of the incident, you said you were not really sure if it looked like the complainant was in your face or not.
Your counsel made detailed submissions on your behalf. You are 47 years old. You were 45 years old at the time of the offence. You are currently single and have no children of your own. You were born in Tuvalu but were raised in Fiji. You had an uneventful childhood and had no adverse experiences. You are the eldest son of your family and have particular responsibilities in that role consistent with your cultural background. You left school at age 14 and began to work in a factory to support your family. You have been in consistent employment in various capacities since that time. It is clear that you are not afraid of hard work. You moved to Australia with your then wife in 2003. You lived in Queensland for a number of years. You and your wife divorced in 2011. Your excessive consumption of alcohol played a large role in the end of your relationship. In 2015, you commenced a new relationship, eventually moving to Tasmania with your partner. You separated in 2025. You are currently working for a window company on a casual basis. The majority of your family still reside in Fiji, and you send money home to support your three sisters and their children’s school fees. One of your nephews currently lives with you and is studying at university.
Your prior matters from your time in Queensland reflect your issues with alcohol. In 2015, you were convicted of a charge of being drunk or disorderly in licensed premises. In 2020, you were dealt with in the Hobart Magistrates Court on two occasions in relation to breaches of a nationally recognised domestic violence order (four counts), two counts of common assault of your former partner by slapping her and by throwing a water bottle at her, and two counts of destroy property. On that occasion, you were convicted and fined. In 2021, you were convicted of exceeding .05 with a blood alcohol reading of .160. You received an infringement notice for behaving in a violent, riotous, offensive or indecent manner in 2022, and, in 2024, received a similar notice for attempting to enter licenced premises when you were subject to a barring order. After you committed the assault against the complainant, you were convicted of further offences relating to your former partner, namely two charges of breach of police family violence order, associated breaches of bail, destroy property and common assault by wrapping your arm around her neck and grabbing a drink from her hand. These offences were committed in March and May of 2025. You were made the subject of a community corrections order including community service hours and declared a serial family violence perpetrator.
You have permanent residency but are not an Australian citizen. If you are sentenced to a term of imprisonment of 12 months or more, this may result in you failing the character test under the Migration Act 1958 (Cth) and result in a revocation of your visa.
I have been provided two forensic psychological assessment reports, authored by Dr Jennifer Wright, dated 23 February 2026 and 3 July 2026. I also ordered that you be assessed by Community Corrections for suitability for community based orders and home detention
From the material before me, it is clear that you have had a long standing issue with excessive alcohol use. In addition, you were stabbed in 2017 while you were living in Queensland. This occurred when you were protecting a person from being assaulted. You were stabbed in the stomach, causing injuries to your stomach and bowel which required surgery. You had two other wounds, which were sutured. You have reported that your mental health has deteriorated since that event. You have described experiencing anxiety, being more watchful of other people, particularly if they are behind you. You report that you have since developed a “short temper”, which you felt was not your usual personality.
Dr Wright recorded your explanation for the offending in her report as follows:
“They then had an argument about the pool rules.…. He said he became frustrated and stated ‘I just wanted to take my shot’; he said he told [the complainant] so, but he wouldn’t agree and they argued and he walked away. He said that the other men then approached him ‘from behind’ and ‘came within my safety zone’ and he remembered thinking ‘I’m not letting you in’ before punching [the complainant] to the head. He remembered feeling emotionally heightened in regard to feeling unsafe, but not angry, and felt that it happened ‘in a second’ and he did not have a chance to think. After he punched [the complainant], he said he ‘freaked out’ realising what he had done… and he walked away…he thought he asked the bartender to call an ambulance, but he left the bar as he was so concerned about what had happened, he felt he needed to ‘get away’. He said he sat in his car outside trying to work out what to do.”
You also explained to Dr Wright that you felt that 80% of your conduct was down to you feeling a threat to your safety, rather than being related to your alcohol use. You suggested that you were more relaxed when drunk and less likely to be angry. Dr Wright administered the PTSD check list in relation to your experience of being stabbed in 2017. You returned a total score placing you well above the suggested threshold of the tool, and suggestive of a likely diagnosis of PTSD. She considers that you meet the diagnosis of PTSD with associated episodes of major depression. You have experienced hyperarousal symptoms, being vigilant to perceived threats to your safety and being easily startled, cognitive changes, causing you to perceive the world to be more dangerous and other people to bring you harm, and avoidance thinking about reminders of your past trauma, with irritable and aggressive outburst. Your experience of periods of depressive episodes have substantially reduced your motivation to seek treatment. You also meet the criteria for a substance use disorder in relation to your use of alcohol. Your use of alcohol was assessed by Dr Wright as mild at the time of the offending, but has been moderate at previous times.
Dr Wright considered the Verdins principles in the context of this assessment. She considered that as a result of your PTSD and your heightened perception of threat, you were more vulnerable to responding impulsively and to feel fear in such a context. She recognised you were intoxicated with alcohol and that this likely had some impact on your behaviour in that it may have made you impulsive. In her view, however, it was PTSD symptoms which impaired your ability to exercise appropriate judgment, to make calm and rational choices and think clearly, and, as such, impaired your ability to appreciate the wrongfulness of your conduct, and therefore contributed causally to the commission of the offence.
Dr Wright also considers that your PTSD and depression should be considered in the context of the sentencing process. She outlined that your conditions are not permanent ones and that symptoms can be resolved or reduced with a combination of medication and psychological treatment. This will require you to overcome your avoidance and lack of motivation for obtaining psychological treatment, which has been an ongoing issue. She is also of the view that your mental health issues would be negatively impacted by a period of imprisonment. You have never been in prison before, and such a sentence would impact your ability to continue employment and seek psychological treatment.
Dr Wright’s subsequent report took into account the transcript of the sentencing proceedings for the person who stabbed you in 2017. One of her observations was that the person who stabbed you was of a similar age to the complainant. She considered that by having an argument with a similarly aged man, you may have been vulnerable to experiencing intrusive reminders of this past assault and misperceived a threat to your safety and struck pre-emptively. In her view, the footage of the assault supported her characterisation of your conduct being a result of a misperceived threat in the context of your pre-existing PTSD.
I have some difficulty accepting Dr Wright’s view of your conduct. The first issue is that during the course of your Community Corrections’ assessment, you told them that you were unaware of your actions and blacked out due to you consumption of alcohol. This is similar to the explanation you ultimately provided police in your record of interview. Apparently when speaking with Dr Wright, you had no such difficulty relaying a version of events. This raises questions about the genuineness of your account. Secondly, the footage is not supportive of your account of being approached from behind and of the other males coming within your safety zone after you walked away. When the other male was behind you and attempting to restrain you, having first approached you from the side, not from behind, your entire focus remained on the complainant. You moved away and at no other time were you approached from behind. When you walked away, you continued to engage in the dispute, apparently demonstrating your point by reference to the pool table. The complainant and the other male attempting to placate you made no sudden movements in your direction, and were either standing with crossed arms or were gesturing to you to calm down with open hands. You were clearly heightened when you were arguing with the complainant and before you punched him, but there is nothing in the footage to justify you perceiving any physical threat. By contrast, it appears you were intent on maintaining your argument with the complainant and reacted aggressively in that context. Your use of alcohol is likely to have played a considerable role in your irrational use of violence. I agree with the State that if you in fact misperceived a threat to your safety on this occasion, it raises real concerns about your ongoing risk of violence.
You have been receiving medical treatment for your mental health issues for a number of years but have yet to engage in any psychological therapy. This is despite having been the subject of more than one mental health treatment plan. I accept that your mental health issues explain your lack of motivation to pursue therapy as does the cost of those services in light of your financial obligations. The Community Corrections’ report outlines that you have reported a reduction in your alcohol consumption, however it appears you still binge drink on occasion, as much as 12 bottles of beer in a sitting.
You were recently made the subject of an 18 month Community Correction and Community Service order. You have completed over half of the required number of community service hours. It is anticipated you will discharge the remaining orders, undertaking the EQUIPS Addiction program which you have already commenced. Community Corrections have assessed you as suitable for further community based orders, but unsuitable for further community service orders due to you struggling with joint pain in the cold. You have also been assessed as suitable for the imposition of a Home Detention order. Community Corrections recommend that a no alcohol condition be imposed if such an order is made. You have also been assessed as suitable for a community based supervision. Community Corrections consider you require a high level of intervention from their service. Their management would focus on supporting you to engage with targeted alcohol interventions, financial counselling and support engagement with mental health and counselling services to address your criminogenic risks. They also have assessed you as suitable for the EQUIPS Aggression programme.
This was a serious assault. It was unprovoked. The footage of the assault is disturbing. You caused serious injury to the complainant. It is fortunate he was not more gravely harmed. Hitting someone to the head is an inherently dangerous thing to do. You have previously been the victim of significant violence. I accept you have suffered from PTSD since that time. While I do not accept that your PTSD was causally related to your conduct in the way described by Dr Wright because I do not accept the factual premise of that conclusion, I do accept that your prior experience of trauma has impacted you. The combination of alcohol and what you have described to your general practitioner as your mood swings and short fuse have contributed to your conduct on this occasion. You need to take steps to address those issues and clearly require support to do so. I take into account your plea of guilty. It has saved the complainant the need to give evidence at trial. You are a mature offender. This is not your first offence of violence, but it is your first offence of significant violence. The sentence I impose is intended to deter you and others from offending in a like manner, denounce your conduct, protect the public and also assist you to address the issues underlying your conduct. Your offending warrants the imposition of a period of imprisonment, but it will be wholly suspended on strict conditions.
Mitiele Waqabaca, you are convicted of the charge on the indictment. You are sentenced to six months’ imprisonment, wholly suspended for a period of two years on the following conditions:
- You must not commit another offence punishable by imprisonment; and
- You are subject to the supervision of a probation officer.
As the suspended sentences is conditional on your supervision by a probation officer, the order is subject to the core conditions of a community correction order, which are set out at s 42AO(b) to (f) of the Sentencing Act. They will be provided to you in writing. You must report to a probation officer at the office of Community Corrections in Hobart by 4.00pm today. You must report to a probation officer as required by the probation officer and comply with their reasonable and lawful directions. You must not leave, or remain outside, Tasmania without the permission of a probation officer and you must notify of any change of address or employment within two working days after the change. In addition to the core conditions, the order will also include the following special conditions that you must, during the two year operational period of the supervision order:
- submit to the supervision of a Community Corrections officer as required by that officer;
- attend, participate in, and complete the EQUIPS Aggression program as directed by a probation officer;
- attend educational and other programs as directed by the court or a probation officer;
- undergo assessment and treatment for alcohol dependency as directed by a probation officer;
- submit to testing alcohol use as directed by a probation officer;
- submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
If you breach the condition that you must not commit another offence punishable by imprisonment during the operational period of the order, the sentence must be activated unless it would be unjust. If you breach any other condition of the suspended sentence, you are liable to be brought back before the court and resentenced, including by the activation of the suspended sentence.