Tuesday, 29 April 2014

Who is Michelle Fernando?

Michelle Fernando is the sister of the schizophrenic and mentally ill woman Shamin Fernando, who was responsible for the murder of their father using a pistol stolen from a gun club on August 22, 2010.

Since the tragedy occurred, Michelle has been on a crusade to tighten what she believes is a loophole, known as 6B, in our gun laws. Michelle believes it was this change to our firearms laws that enabled Shamin to steal a firearm from a Sydney pistol club prior to shooting her father to death that very same day.

The problem with Michelle's crusade is that it was not 6B that enabled Shamin to handle a firearm unsupervised and for her to later steal it.

Shamin had managed to complete her extensive probationary pistol training and compete in her first club competition prior these events unfolding. On the day of the shooting of Vincent Fernando, the club loaned Shamin a handgun, but at no point did they verify that her Probationary Pistol Licence (PPL) was issued by NSW police, certifying her to use a handgun in competition unsupervised.

The pistol club failed in their duty of care and the instructors responsible were punished by the law.

More on that later....

Despite this, Michelle sadly remains unequivocally in denial about these obvious facts and blames the Shooters and Fishers Party for a legislative change that was necessary to allow new shooters to try the sport before they commit to the lengthy and costly process of applying for a handgun licence - a provision that is currently afforded to citizens of every State and Territory in Australia.

In addition, Michelle fails to take personal responsibility for knowing her sister Shamin was attending pistol clubs, knowing she was a schizophrenic and knowing she may have been conspiring to kill their father. A video of the circumstances, in Michelle's own words, has been included here.



So what is 6B?

6B was enacted in 2008 by NSW parliament. The legal definition states that it is an.....
"Exemption for unlicensed persons shooting on approved ranges and for persons undertaking firearms safety training courses under direct supervision of a licensed instructor"
Prior to this change to the Act, it was illegal to allow unlicensed individuals to try shooting and obtain instruction while their handgun licence application and background checks were processed by NSW police - a process "mandated by legislation" takes a minimum of 6 months.

Under the 6B provision, a new member would need to show suitable identification and complete a P650 form prior to being able to receive hands-on instruction on how to handle a handgun safely.

Mental Illness and the P650 form.

At the core of the concerns of the Fernando family is part 6B of the firearms legislation. The legislation requires that a P650 form be completed by new pistol club members, declaring whether or not they suffer from a mental illness.


The Fernando's argue that nobody checks these answers and that anyone could simply lie in order to obtain access to a handgun. They seemly fail to acknowledge that access to a handgun is permitted only under direct supervision of a licensed instructor.  See the section below for the definition of direct supervision.

The reality is police do not have access to private patient records to even know if an individual makes a false declaration. Only if an individual is known to police, in relation to an incident they've attended, will they have the ability to deem whether or not the individual is a fit and proper persons to handle firearms.

So whilst the form seems to serve little purpose, surprisingly many with a mental illness are honest in their answers. Baring in mind that gun owners are not immune from common mental illnesses such as depression or anxiety, but importantly manage it appropriately.

It's also important to note many qualified mental health professionals vehemently opposed mandatory mental health checks being included in the 1996 National Firearms legislation. I suspect they disagreed with the Governments approach for various reasons. Something I hope to explore in a future blog.

What we should be talking about with one another is mental health (the root cause of the tragedy), in order to get a better understanding and education about the illness. One would think it common sense if you knew someone with schizophrenia was plotting to kill their estranged father, as well as attending gun clubs, some personal responsibility is expected of you to at alert authorities of their intentions and movements.

We live in a community and have a duty of care to one another to speak up if we suspect something bad might happen, regardless what it might be.

Forms, legislation, processes and the humans who bring all these together will never be perfect. Blaming those rather than ourselves for a lack of common sense and inaction is poor way of dealing with a loss moving forward. It's very sad and unfortunate the Fernando family are oblivious of this.

Do other states have this same 6B provision?

Yes - When the 1996 National Firearms Agreement was enacted, each state had a responsibility to pass their own firearms legislation in order to comply with the Federal agreement. NSW was the only state that did not include this exemption to their State legislation, significantly disadvantaging new members who wanted to try out the sport.  As an example, in Victoria, the exemption can be found in item 4 of SCHEDULE 3 of the Act - it states:
"A person who is of or over the age of 18 years, and who is receiving instruction in the use of a general category handgun by or under the immediate supervision of the holder of a general category handgun licence; and (b) for the purposes of obtaining a general category handgun licence for a reason set out in section 15(1)— and who has not received any such instruction on more than nine previous occasions."
So how did Shamin manage to steal a handgun?

All clubs have firearms that are specifically used for new probationary members to train with. After usually 3 months practical training under direct supervision and passing a theory test, a handgun safety certificate is issued by the club to the new member. The club also approve the applicants membership and provide a stamped approval form that the member then sends to NSW police to finalise the processing of their Probationary Pistol Licence (PPL). After their PPL has been issued by NSW police, they can then legally borrow handguns for local club matches.

Importantly.....
"Before a new member can borrow a handgun for use to compete in a club match "unsupervised", the club has a responsibility to sight their PPL before issuing them a firearm for loan in the match."
The handgun is returned after match completion.

It's also important to note that club members are very vigilant with regard to new members. Competitors are alerted in advance of new members joining competition and tend to supervise them somewhat indirectly.

Unfortunately, the new members instructor nor the armorer who provided the handgun to Shamin verified that she had her PPL. They simply failed this simple check - leading to unimaginable consequences for the Fernando family.

Direct Supervision

Putting human error aside for a moment... There's no question that the Fernando's are clearly in denial about the circumstances surrounding their tragedy and the definition of the legislation that is currently in place.

Michelle's petition ridiculously asserts that anyone can simply get a gun from a gun club. She states:
"a 2008 change to the firearms act makes it legal for clubs to give guns to unlicensed shooters."
The reality is until the individual is issued with a probationary pistol licence from NSW police, they must always be under direct supervision.

The definition of direct supervision can be found on the NSW police website. It clearly states:
"Direct supervision must not exceed a ratio of one unlicensed person to one licensed supervisor. 
The licensed supervisor must be present at the firing line and not leave whilst shooting activities are being undertaken by the unlicensed person. 
The licensed supervisor must be able to immediately render assistance to the unlicensed person, if required. 
The licensed supervisor must personally convey the firearm and ammunition to be used by the unlicensed person from its place of storage to the firing line. 
The licensed supervisor must personally convey the firearm and ammunition from the firing line to the place of storage upon the conclusion of shooting activities."
So who was at fault?

The instructors failed to comply with the law and were subsequently charged. They attended court and were both found guilty for failure to comply with the Firearms Act. They also had their firearms licences cancelled and were significantly fined for the breach.

I highly doubt there isn't a single instructor across Australia that is not aware of the Shamin Fernando case.

After this event, I'm confident meticulous care, to a pedantic and extraordinary level, is taken to ensure the safety of individuals, the safety of the public and compliance with the law.

Conclusion

I do encourage you to write to the Fernando's explaining how 6B had nothing to do with the events that unfolded.  I'd add that this was an unfortunate "one off" incident that occurred due to a calamity of errors that could have been easily avoided had the instructors or the Fernando family been just a little more diligent.

I'd also write to media who are exploiting the Fernando's tragedy for cheap ratings. Their rhetoric does nothing but feed the denial of the Fernando's and further perpetuates their fanciful belief as to what led to the tragic circumstances that transpired.

To make matters worse, Gun Control Australia have callously used Michelle Fernando as the poster girl for their new facebook campaign. They and the Australian Greens (John Kaye et al) are also not exempt from my criticisms.  They should be ashamed of themselves.








The Trial

Read the case law transcript of the trial here.....