Fail to Restrain Dangerous Dog Off the Owner’s Premises

– section 41(1) of the Domestic Animals Act 1994
Restrained Dog
A dangerous dog outside its owner’s premises must be appropriately restrained. If an owner fails to properly restrain their dangerous dog outside their premises, they will be guilty of an offence pursuant to section 41(1) of the Domestic Animals Act 1994 (‘the Act’).
Examples of Fail to Restrain Dangerous Dog Off the Owner’s Premises
  • A person is walking their German Shepherd, which has been trained to bite people on command, with a leash but no muzzle.
  • A person is walking their Staffordshire Bull Terrier, which has been declared a dangerous dog by the local council. The dog is muzzled but off the leash.
  • A person allows their Dobermann, which has been declared a dangerous dog by the local council, to roam in a public park without a leash and without a muzzle.
Questions in cases like this
  • Is the dog a ‘dangerous dog’?
  • Is the dog off the owner’s premises?
  • Is the person charged with the offence the dog’s owner?
  • Is the dog properly restrained (i.e. with a muzzle and leash)?
What are some of the possible defences to Fail to Restrain Dangerous Dog Off the Owner’s Premises?

Defences to this charge ordinarily involve factual disputes. These defences include:

  • The person charged with the offence does not own the dog;
  • The dog was not off the owner’s premises;
  • The dog is not a ‘dangerous dog’;
  • The dog was properly restrained with a muzzle and leash.

A further defence to this charge is that the dangerous dog is a guard dog guarding non-residential premises.1

Maximum penalty and court that deals with this charge

This offence carries a maximum penalty of 40 penalty units (a $6,447.60 fine).2

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.3 As such, the maximum fine for this offence is liable to change.

As a summary offence, this charge is predominantly heard in the Magistrates’ Court.

As with any criminal offence, whether or not someone should plead guilty to this charge depends on the specific features of their case.

What is the legal definition of Fail to Restrain Dangerous Dog Off the Owner’s Premises?

The legal definition of this offence is as follows:

  1. If a dangerous dog is outside the premises of its owner and is not—
    1. muzzled in a manner which is sufficient to prevent it causing injury by biting; and
    2. under the effective control of some person by means of a chain, cord or leash—

    the owner of that dangerous dog and any person for the time being in charge of the dog are guilty of an offence and liable to a penalty of not more than 40 penalty units.

  2. This section does not apply to a dangerous dog which is a guard dog while the dog is guarding non-residential premises.

 
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Legislation

The relevant legislative provision for this offence is section 41(1) of the Domestic Animals Act 1994 (Vic).

Elements of the offence

The Prosecution must prove:

  1. The dog is classified as “dangerous” by a council or within the meaning of section 34A of the Act;
  2. The person charged with the offence is the dog’s owner;
  3. The dog was not appropriately restrained; and
  4. The dog was not a guard dog guarding a non-residential premises.

Element 1: The dog is classified as “dangerous” by a council or within the meaning of section 34A of the Act
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.4

A dog can also be declared to be dangerous by a Council.5 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.

Element 2: The person charged with the offence is the dog’s owner
For this offence to apply the person charged must be the dog’s owner.

A dog’s owner is defined in the Act as ‘a person who keeps or harbours [the dog] or has [the dog] in his or her care for the time being whether [the dog] is at large or in confinement’.6

Element 3: The dog was not appropriately restrained
The prosecution must further prove that the dog was not restrained. A dog is properly restrained when:

  1. The dog is muzzled in a manner which is sufficient to prevent it causing injury by biting;7 and
  2. Under the effective control of some person by means of a chain, chord or leash.8

It is important to note that for a dog to be properly restrained, the dog must be both sufficiently muzzled and effectively controlled using a chain, chord or leash.

“Can they prove that the dog was improperly restrained?”

Element 4: 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.

Sentencing in the Magistrates’ Courts

Magistrates' CourtThere were 31 cases (66 charges) of Fail to Restrain Dangerous Dog Off the Owner’s Premises that were heard in the Magistrates’ Court from 1 July 2013 to 30 June 2016. These cases resulted in financial penalties (80.7%) and adjourned undertakings/discharges/dismissals (19.4%).

The highest fine imposed was between $5,000 and $10,000, however this was given to only 7.0% (aggregate) of those who were fined. The majority of fines were between $2,000 and $3,000.9

Other important resources

 



[1] Domestic Animals Act 1994 (Vic) s 41(2).
[2] Domestic Animals Act 1994 (Vic) s 41
[3] http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/
[4] Domestic Animals Act 1994 (Vic) s 34A
[5] Domestic Animals Act 1994 (Vic) ss 3, 34
[6] Domestic Animals Act 1994 (Vic) s 3
[7] Domestic Animals Act 1994 (Vic) s 41(1)(a)
[8] Domestic Animals Act 1994 (Vic) s 41(1)(b)
[9] SAC Statistics – Domestic Animals Act 1994 (Vic) : s 41(1) – fail to restrain dangerous dog off the owner’s premises < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/94_81_41_1.html >