Dangerous Non-guard Dog Attacks or Bites a Person or Animal – Person in Control

– section 29(1) of the Domestic Animals Act 1994 (Vic)
Dog Attack
This offence generally arises when a dangerous dog or restricted dog attacks or bites to another person or animal. This charge does not apply to guard dogs guarding non-residential premises.
Examples of Dangerous Non-guard Dog Attacks or Bites a Person or Animal – Person in Control
  • A Japanese Tosa is being walked by a professional dog walker. The Japanese Tosa breaks free of the dog walker’s control and bites a nearby Toy Poodle.
  • A person owns an American Pit Bull Terrier which they keep in their front yard. A child walks into the front yard to retrieve a tennis ball and the American Pit Bull bites them.
  • The owner of a Dogo Argentino is transporting their dog to the vet in their car. As they leave the car with the Dogo Argentino on a leash, the Dogo Argentino breaks free of the owner’s control and bites a small sausage dog leaving the vet.
Questions in cases like this
  • Was the person in apparent control of the dog?
  • Did the dog attack or bite a person or another animal?
  • Was the dog a guard dog guarding a non-residential premises?
What are some of the possible defences to Dangerous Non-guard Dog Attacks or Bites a Person or Animal – Person in Control?
  • Was the person in apparent control of the dog?

Defences to this charge would generally focus on the issue of control and whether a person was in control of the dog.

Other possible defences include:

  • The dog did not attack or bite another person or animal;
  • The dog was not a dangerous dog or restricted breed dog; and
  • The dog was a guard dog guarding non-residential premises.

It may be that your instructions are to plead guilty to the charge in which case your lawyers role is to explain the mitigating circumstances of case to the magistrate to minimise the penalty you receive.

Whether you should contest or plead guilty to this offence depends on many factors that are best assessed by a criminal lawyer.

Maximum penalty and court that deals with this charge

Magistrates' CourtThis offence carries a maximum penalty of six months imprisonment fine or a fine of 120 penalty units ($19,342.80) as the highest possible sentence. This offence is heard at the Magistrates’ Courts.

The value of a penalty unit is revised annually by the Department of Treasury and Finance on 1 July each year. As such, the maximum fine for this offence is liable to change.

Depending on the severity of the matter, there is the possibility of having a case such as this dealt with by way of diversion.

What is the legal definition of Dangerous Non-guard Dog Attacks or Bites a Person or Animal – Person in Control?

The legal definition of this offence is:

“If a dangerous dog, that is not a guard dog guarding non-residential premises, or a restricted breed dog attacks or bites any person or animal, the person in apparent control of the dog at the time of the attack or biting, whether or not the owner of the dog, is guilty of an offence and liable to a term of imprisonment not exceeding 6 months or to a fine not exceeding 120 penalty units.”

Legislation

The legislation for this offence of dangerous non-guard dog attacks or bites a person or animal (person in control) is section 29(1) of the Domestic Animals Act 1994 (Vic) (‘the Act’).

Elements of the offence

The Prosecution must prove:

  1. That the dog was a dangerous or restricted breed dog; and
  2. That the dog was not a guard dog guarding a non-residential premises; and
  3. That the dog attacked or bit another person or animal; and
  4. That the accused was in apparent control of the dog at the time of the attack or biting.

Element 1: The dog was a dangerous or restricted breed dog
A dog is a ‘dangerous dog’ if it is kept as a guard dog on a non-residential premise, or if the dog has been trained to attack or bite any person or any thing.1

A dog can also be declared to be dangerous by a Council.2 A council may declare a dog to be dangerous if:

  • The dog has caused the death of or serious injury to a person or animal by biting or attacking that person or animal;
  • The Council has labelled the dog a ‘menacing dog’ and its owner has received two or more infringement notices for not having the dog properly restrained or muzzled;
  • The dog has been declared a dangerous dog under the law of another State or Territory;
  • There has been a finding of guilt that the dog was involved in multiple dog attacks; or
  • For any other reason prescribed by the Council.

The following are restricted breed dogs:3

  • Japanese Tosa;
  • Fila Brasileiro;
  • Dogo Argentino;
  • Perro de Presa Canario (or Presa Canario); or
  • American Pit Bull Terrier (or Pit Bull Terrier).

Call Doogue + George
 
Element 2 – The dog was not a guard dog guarding a non-residential premises
This offence does not apply when the dog is a guard dog guarding a non-residential premises.

Element 3 – The dog attacked or bit another animal
A dog must have bitten or attacked someone for this offence to apply.

Attacking is not defined in the act but can include biting, rushing at or chasing a person or animal.4

Element 4 – The accused was in apparent control of the dog at the time of the biting or attack
‘Apparent control’ is not defined in the Act. A range of different situations could foreseeably amount to a person being deemed to have ‘apparent control’ of a dog. These situations include:

  • Having the dog on a leash while walking it;
  • Walking the dog without the dog being restrained on a leash;
  • Having the dog kept inside a front yard with a low fence it can easily jump over;
  • Having the dog locked behind a gate on private property; or
  • Transporting the dog in a motor vehicle.
“Can they prove you were in control of the dog?”

It is important to note that someone can be in apparent control of a dog without being the dog’s owner.

Sentencing in the Magistrates’ Courts

The Sentencing Advisory Council has not published sentencing information in relation to this offence.

Other important resources
Case study related to Dangerous Non-guard Dog Attacks or Bites a Person or Animal – Person in Control

 



[1] Domestic Animals Act 1994 s 34A
[2] Domestic Animals Act 1994 ss 3 34
[3] Domestic Animals Act 1994 s 3
[4] https://www.victorialawfoundation.org.au/dangerous-dogs-and-dog-attacks