Russell Kennedy represented Monash City Council.
The Accused was charged with two breaches of the Domestic Animals Act 1994 (Vic) (Act) namely:
- breach of section 29(3) – person in apparent control of a dog attacking a person causing serious injury (Maximum Penalty: 40 Penalty Units – $7,692.40)
- breach of section 10(1) – owner of dog and fail to register the dog with Council (Maximum Penalty: 20 Penalty Units – $3,846.20)
The Accused is the owner of a Great Dane type dog.
In November 2023 the Accused was walking their dog on leash along the footpath. From the other direction an 86 year old male was also walking along the footpath. As he turned the corner, he observed the Accused was holding the lead with two hands and that he did not have the time to react in anyway and the Great Dane jumped towards him. He put his right hand out to protect himself or else it would have got his neck.
The Great Dane bit the victim first on the palm of his right hand and then a second time near his right elbow. The victim fell back from the dog pushing him over onto the concrete footpath, onto his bottom and put his left hand down and his back hit against the fence. He never went to pat or interact with the Great Dane.
The victim stayed at Dandenong Hospital for 4 nights. He had surgery insert a pin into his right hand and plastic surgery for skin grafting on the wounds.
Victim Impact Statements from the victim, his wife and son were also tendered to the Court.
Magistrates’ Court Summary
The matter was mentioned in August 2024. The Court was advised that it should consider destroying the dog. The matter was adjourned to allow each party to file and serve material.
In October 2024, the Accused appeared in the Moorabbin Magistrates’ Court and entered a plea of guilty to the charges.
The matter was heard before His Honour Magistrate Stary who found the charges proven. The Accused had no prior matters.
The main issue in which was in dispute was whether an order pursuant to section 29(12) should be made which provides as follows:
(12) If a person is found guilty of an offence under this section with respect to a dog, the court may order that the dog be destroyed by a Council authorised officer of the municipal district in which the offence occurred.
The prosecution submitted that an application under section 29(12) is not a Council application and that it is an unfettered discretion of the Court which can be exercised independent of a Council application.
It was submitted that from a procedural fairness point of view and a natural justice point of view it was appropriate for the Court due to appeal rights of the Accused to consider destruction and it was best practice for each party to submit material in support such as behaviouralists reports.
The Court heard that under section 84P of the Act that Council had a discretion to also destroy a dog but in the absence of set procedures the process can get messy and was best left to the Court to enable appeal rights to be exercised if required.
His Honour Magistrate Stary from the outset said he had concerns of the dog remaining in the community and accepted the Accused had done everything she could to mitigate the problem but that was not the end of it.
The Great Dane had resided with the Accused for almost 12 months since the incident without any further known incidents occurring.
Both the prosecution and defence submitted reports from dog behaviouralists.
The report for the prosecution outlined that the Great Dane remained a risk should similar circumstances arise and that the Great Dane would need to be managed in a way to prevent further incidents such as ensuing any property the Great Dane resides at is secured and that the Great Dane is muzzled in public.
Defence Counsel submitted that all dogs can always be a risk.
His Honour pointed out that both reports could not rule out risk to the community and that even if the dog was muzzled in public and when visitors were over it might still not be enough given this incident occurred when the dog was on leash and under effective control and was wearing a halti yet the dog attacked in a vicious way.
Mr Stary also pointed out that the Accused failed to register the dog for some 15 months and that if she failed to comply with those obligations, it eroded his confidence in her ability to comply with any other obligations.
His Honour proposed a hypothetical scenario about a premises being secure but a backdoor being left open and one moment can be the difference.
Defence Counsel outlined that for almost 12 months there had been no moments of inattention and Mr Stary said that is the point, it only takes one.
His Honour accepted that the Accused was of good character and that she could not have done anymore as to what she had done to date in regards to migratory measures. He said however the measures outlined in the reports and material placed an enormous onus on the Accused.
Defence Counsel repeatedly mentioned there had been no further incidents in 12 months and no other history. His Honour Magistrate Stary again spoke about that it only takes one incident for someone to spend 4 days in hospital and one only had to read the victim impact statements to know what damage one incident can do.
In response the prosecution conceded that the dog had not attacked in 12 months however it was an unfettered judicial discretion of the court to balance the risks in relation to the dog remaining in the community against the measures in mitigation put in place by the Accused.
Decision
His Honour commenced by ordering the Great Dane to be destroyed and that he would impose a without conviction fine.
In making the destruction order Mr Stary said:
- the Accused had done everything within her power that gave rise to after the attack;
-
could not have done anymore;
- there are broader considerations and obligations to consider;
- that is, not to allow a dog that has caused extremely serious and debilitating injury when a man was exercising his rights to use a footpath when attacked;
- there is no real realistic alternative to destruction;
- the expert reports were qualified in nature; and there is an ongoing risk.
In regards to sentence for the charges Mr Stary said:
- he took into account the impact of the destruction of the animal and the psychological effect;
- he did not consider specific deterrent as a relevant factor;
- he took into account all the references provided and the reports from the two animal behaviouralists;
- he regarded the plea as at an early opportunity; and
- general deterrence was relevant but limited given the impact of the penalty on the Accused.
The Accused was without conviction an aggregate amount of $1,000.00 and ordered to pay $3,000.00 in legal costs.
County Court
An appeal on sentence alone was immediately filed by defence in the County Court which was heard on 5 March 2025.
By way of agreement given the passing of time and with no further incidents involving the dog, the destruction issue was not pushed and the County Court imposed the same sentence as the Magistrates’ Court but for destruction.