The Judge should apply the provisions of the Penal Code when sentencing, which means that they should apply both general and specific offence-related parts of the Penal Code in relation to the sentencing of each particular case. After determining that the accused has committed an offence as provided in a specific item and article of the Penal Code, in order to decide the correct penalty, the Judge should apply the provisions of the Penal Code as follows:
6.1.1.1. The Judge should apply the principles of adjudication as provided in Article 3 of the Penal Code
- All acts of criminal offences must be detected in a timely fashion and handled in a prompt, just and enlightened manner in strict accordance with the law.
- All offenders are equal before the law, regardless of their sex, nationality, beliefs, religion, social class and status.
- To severely penalize conspirators, ringleaders, commanders, die-hard opposers, wrong-doers, hooligans, dangerous recidivists, those who have abused their position and power to commit offences and those who have committed offences with treacherous ploys, in an organized and professional manner, with intention to cause serious consequences.
- To grant leniency to persons who confess, make honest declarations, denounce accomplices, redeem their faults with achievements, show repentance, voluntarily right themselves or make compensation for damage they have caused.
- For first-time offenders of less serious offences, who have shown their repentance, penalties lighter than imprisonment may be imposed, and they may be placed under the supervision and education of agencies, organizations or families.
- For persons sentenced to imprisonment, they must be compelled to serve their sentences in detention camps, to labor and study so as to become persons useful to society; if they make marked progress, they shall be considered for commutation of their penalties.
- Persons who have served their sentences in full shall be given conditions to work and live honestly, to integrate themselves into the community, and when they fully meet the conditions prescribed by law, their criminal records shall be erased.
6.1.1.2. The Judge should apply the provisions relating to the purpose of penalties as provided in Article 27 of the Penal Code
- Penalty is the most severe coercive measure applied by the State so as to strip or restrict the rights and interests of the offenders; penalties, therefore, primarily aim to punish offenders.
- Penalties also rehabilitate offenders into persons useful to society and having the sense of observing laws and regulations of the socialist life, preventing them from committing new offences. As a result, the Judge should decide a penalty in a manner that ensures that an offender is both punished yet also shown clemency . The Judge should neither emphasize punishment leading to a too severe penalty nor clemency leading to a too light penalty, neither of which shall result in rehabilitation.
- Penalties also aim to educate other people to respect laws and prevent and combat offences.
6.1.1.3. The Judge should apply the provisions of penalties as provided for from Article 28 to Article 40 of the Penal Code
- The Judge should understand well which penalty is principal, which is addititonal and which is both principal and additional.
- The Judge should study thoroughly provisions on each specific type of penalty, especially condititions for applying such type of penalty.
- The Judge should note which provisions of which penalty are compulsory and which are optional, and follow such provisions to decide the correct penalty.
For example:
When applying non-custodial reform to an offender, the Judge must note that:
- The Court shall assign the persons subject to non-custodial reform to the agencies or organizations where such persons work or to the authorities of the places where such persons permanently reside for supervision and education.
- The sentenced persons shall have to perform a number of obligations according to the provisions on non-custodial reform (such obligations are provided in Article 4 of Decree No. 60/2000/ND-CP dated 30 October 2000 of the Government providing for implementation of non-custodial reform) and be subject to between 5% and 20% deduction of their incomes for remittance into the State’s fund. Only under special circumstances may the Court order exemption of income deduction, but must clearly inscribe the reasons for such exemption in the judgement.
6.1.1.4. The Judge should apply aggravating and mitigating elements as provided in Article 46 and Article 48 of the Penal Code
- The Judge should understand well what is a fact of extenuation as provided in Item 1 of Article 46 of the Penal Code. This is one of the most important conditions to decide a penalty which is lighter rather than provided by the Penal Code (See also Sub-Section 6.2 of this Part).
- Conditions to apply other facts of extenuation as provided in Item 2 of Article 46 of the Penal Code.
- When hearing a case of a specific offence, the Judge should consider whether there is any fact of extenuation as provided in Item 1 of Article 46 of the Penal Code being a sign for determining such offence or determining the penalty bracket for such offence, then applying or not applying such fact of extenuation.
- Noting that only facts provided in Item 1 of Article 48 of the Penal Code are considered as facts of aggravation of criminal liability. Facts considered as signs for determining an offence or determining the penalty bracket for such offence shall not be considered as facts of aggravation (See also Sub-Section 6.2. of this Part).
6.1.1.5. The Judge should apply the provisions relating to sentencing in a number of specific cases, as provided in Articles 47, 50, 52 and 53 of the Penal Code (if any).
6.1.1.6. The Judges should apply the provisions relating to penalty exemption as provided in Article 54 of the Penal Code (if any).
6.1.1.7. The Judge should apply the provisions relating to specific offences as provided in relevant articles of the Part on Specifice Offences.
6.1.1.8. The Judge should apply the other provisions of the Penal Code.
Depending on each specific case, the Judge shall apply the relevant provisions of the Penal Code.
For example :
In order to decide to apply a suspended sentence, the Judge must apply Article 60 of the Penal Code;
- In order to decide a penalty for a juvenile offender, the Judge must rely on a relevant article of Chapter X of the Penal Code.
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