– After studying the article by author Pham Van Phuong published on 20/11/2023, I believe that the aggravating circumstances of recidivism and dangerous recidivism must be applied to Tran Van T.
There is currently no new document providing specific guidance on the provisions relating to “Recidivism or dangerous recidivism” under Article 53 of the 2015 Criminal Code; however, reference can be made to the latest guidance in Sub-section 2 – Article 3 – Resolution 03/2020 dated 30/12/2020 of the Council of Judges of the Supreme People's Court guiding the application of certain provisions of the Criminal Code in adjudicating corruption offenses and other position-related offenses, which addresses recidivism and dangerous recidivism as follows: “Having been convicted of one of the offenses specified in Section 1 of this Chapter, not yet expunged, and reoffending” as provided in Clause 1 of Articles 353, 354 and 355 of the Criminal Code means that the offender had previously been convicted once of one or more offenses specified in Section 1, Chapter XXIII of the Criminal Code, the conviction has not yet been expunged, and the offender commits one of the acts listed in Clause 1 of one of Articles 353, 354 and 355 of the Criminal Code. Where, in addition to the above prior conviction, the offender has other prior convictions, those convictions shall be used to determine recidivism or dangerous recidivism, unless all of the prior convictions have already been used to establish the constituent elements of the offense in previous convictions.”
Thus, for defendants with multiple prior convictions, it is necessary to specifically determine which prior conviction is used as a constituent element of the offense; if a prior conviction has been used to establish the offense, it shall not be used as an aggravating circumstance, while the remaining prior convictions not used to establish the offense must be used to determine recidivism or dangerous recidivism. T was sentenced to 06 months' imprisonment for Theft of property on 20/7/2011; however, on 27/2/2013, T was again sentenced to 15 months' imprisonment for Gambling, i.e., before the period for automatic expungement of the 20/7/2011 judgment had elapsed. On 09/9/2015, T was sentenced to 42 months' imprisonment for Resisting persons on official duty; at that time, T had also not yet served enough time for automatic expungement of the 02 earlier judgments. On 22/11/2019, T stole property worth VND 1,500,000, at which time T still had not had any of the above 3 convictions expunged. However, this time T stole property worth less than VND 2,000,000, so the circumstance “Having been convicted of this offense…., not yet expunged, and reoffending” must be applied to establish the offense against T.
Specifically, on 20/7/2011, T was convicted of Theft of property, but by the time T stole the bicycle worth VND 1,500,000, T had not yet had that conviction expunged; therefore, even though the value of the property was less than VND 2,000,000, T was still criminally prosecuted for theft of property. The judgments of 27/2/2013 and 09/9/2015 have not been used as constituent elements of the offense, so they are considered in determining recidivism or dangerous recidivism.
Under Point b, Clause 2, Article 53 of the 2015 Criminal Code, dangerous recidivism is the case where the offender “has committed recidivism, has not had the conviction expunged, and again intentionally commits an offense”. If the aggravating circumstance of recidivism was not applied in the judgments of 27/2/2013 and 09/9/2015, then for the offense of 22/11/2019, under the principle of applying what is favorable to the offender, T would only be criminally prosecuted under Point b, Clause 1, Article 173 of the Criminal Code, with the aggravating circumstance of “recidivism” under Point h, Clause 1, Article 52 of the Criminal Code. If the circumstance of recidivism was applied in the judgments of 27/2/2013 and 09/9/2015, then for the offense of 22/11/2019, T must be criminally prosecuted under Point g, Clause 2, Article 173 of the Criminal Code.
The above is my view, and I look forward to receiving comments from readers.
