Main tasks and practical skills:
6.2.2.1. Committing offences in an organized manner (Point a of Item 1 of Article 48 of the Penal Code)
- Two persons or more intentionally committed an offence and they did cooperate closely to commit the offence.
- When determining that the offence was committed in an organized manner, the Judge should apply this fact of aggravation to all the persons who committed the offence (the person who organized, the person who carried out, the person who incited or the person who helped).
- Extent of aggravation depends on the nature of the organized manner and role of each person in committing the offence.
6.2.2.2. Committing offences in a professional manner (Point b of Item 1 of Article 48 of the Penal Code).
- Committing offences in a professional manner means intentionally committing offences five times or more with respect to a type of offence, regardless of whether criminal liability has been prosecuted or not, if time limit for prosecuting criminal liability has not expired or their sentence has not been erased, at the same time the offenders earn their lives by such offences and use results of the offences as their main source for living.
- When applying this fact of aggravation, the Judge should study thoroughly Section 5 of Resolution No. 01/2006/NQ-HDTP.
6.2.2.3. Abusing positions and powers in order to commit offences.
- A person can be appointed, elected, be under a contract or other forms to have a position. They receive salary or not and be assigned to do a fixed duty and have a certain power to do such duty.
- Abusing positions and powers in order to commit offences means abusing positions and powers to commit offences during carrying out such duty.
6.2.2.4. Committing offences in a hooligan manner (Point d of Item 1 of Article 48 of the Penal Code)
- Hooligan means a person who usually picks a guarrel or mal-treats. Committing offences in a hooligan manner means committing offences by reason of themselves.
6.2.2.5. Committing offences with despicable motivation (Point dd of Item 1 of Article 48 of the Penal Code).
- Committing offences with despicable motivation means committing the offences with mean, vile and selfish motivation, showing ungratefulness, falseheartedness and cowardice.
6.2.2.6. Intentionally carrying out offences to the end (Point e of Item 1 of Article 48 of the Penal Code).
- Intentionally carrying out offences to the end means attempting to carry out the intention of the offences and acts of offence, regardless of others’ prevention or other hindrances in the course of carrying out the offences.
- The Judge should apply this fact of aggravation if the offenders could not reach their purposes but it can be proved that they did try all ways to carry out the offences in order to reach such purposes.
- Where the offenders hesitated to carry out the offences, the Judge shall not apply this fact.
- For example: A had an intention to steal B’s motorbike and came to B’s house two times. Although A had a favourable condition to steal B’s motorbike but A hesitated the first time, the second time A thought that B would face difficulty if A stole B’s motorbike. And the third time A stole B’s motorbike and sold. This case shall not be considered as intentionally carrying out offences to the end.
6.2.2.7. Re-offending, recidivism, dangerous recidivism (Point g of Item 1 of Article 48 of the Penal Code).
- Re-offending means committing a type of offence two times or more, each of which could constitute an offence but has not been prosecuted for criminal liabilty and time limit for prosecuting has not exprired. All these offences can be heard in a judgment.
- Note that re-offending should be distinguished from committing multiple offences.
Recidivism means cases as provided in Item 1 of Article 49 of the Penal Code. When applying this fact of recidivism, the Judge should study thoroughly Section 7 of Resolution No. 01/2000/NQ-HDTP.
- Dangerous recidivism means cases as provided in Item 2 of Article 49 of the Penal Code. When applying this fact of dangerous recidivism, the Judge should study thoroughly Section 8 of Resolution No. 01/2000/NQ-HDTP.
6.2.2.8. Committing offences against children, pregnant women, aged persons, persons unable to defend themselves or persons dependent on offenders in material and/or moral conditions, work or other ways (Point h of Item 1 of Article 48 of the Penal Code).
- The Judge shall apply the fact of “committing offences against children, pregnant women, aged persons, persons unable to defend themselves or persons dependent on offenders in material and/or moral conditions, work or other ways” only to cases where offences are intentionally committed, regardless of whether the accused was able to be aware or not.
- “Children” mean persons of less than 16 years of age as provided in Article 1 of the Law on Protecting, Caring and Educating Children (Sub-Section 2.2 of Section 2 of Resolution No. 01/2006/NQ-HDTP).
- “Pregnant women” can be determined by evidence proving that such women were being pregnant, such as: the accused and other persons could see that or learn from different sources of information on the pregnancy. In practice, if it is difficult to determine whether the women were being pregnant or if there is a contradiction between testimonies of the accused and the victims, the Judge should rely on conclusion of a medical professional body or an examination conclusion to determine whether they were being pregnant (Sub-Section 2.3. of Section 2 of Resolution No. 01/2006/NQ-HDTP).
- “Aged persons” mean persons of not less than 70 years of age (Sub-Section 2.4 of Section 1 of Resolution No. 01/2006/NQ-HDTP).
- “Persons unable to defend themselves” mean persons in the status of having no or having limited capability to be aware of or control their acts; being ill, being in deep sleep, being unable to resist or defend themselves, etc.
- “Persons dependent on offenders in material and/or moral conditions, work or other ways” mean persons having relations to the offenders but being dependent on the offenders in material and/or moral conditions, work or other ways.
6.2.2.9. Infringing upon the State’s property (Point i of Item 1 of Article 48 of the Penal Code).
- “State’s property” means property subject to State ownership as provided in Article 200 of the Penal Code 2005 and governed by provisions of Section 1 of Chapter XIII of the Civil Code 2005.
- “Infringing upon the State’s property” means that the offenders appropriate, damage or degrade the property of the State.
6.2.2.10. Committing offences causing serious, very serious or particularly serious consequences (Point k of Item 1 of Article 48 of the Penal Code).
- The consequences must be caused by the offences. These can be physical or non-physical damages.
- Depending on consequences caused by each type of offence, the Judge shall determine which is serious, very serious or particularly serious consequences.
6.2.2.11. Taking advantage of war conditions, emergency situations, natural calamities, epidemics or other special difficulties of the society in order to commit offences (Point l of Item 1 of Article 48 of the Penal Code).
- The offenders must have taken advantage of war conditions, emergency situations, natural calamities, epidemics or other special difficulties of the society in order to commit offences. This does not mean that the offenders committed the offences at the time of war conditions, emergency situations, natural calamities, epidemics or other special difficulties of the society.
- Note that if the offenders committed offences under war conditions, emergency situations, natural calamities, epidemics or other special difficulties of the society and the offenders did not take advantage of such events to commit offences, this fact of aggravation shall not apply.
6.2.2.12. Using treachery or, cruel tricks to commit offences and/or using means capable of causing harm to many persons (Point m of Item 1 of Article 48 of the Penal Code).
- Using treachery to commit offences means that the offenders use fiendish and deceitful tricks and methods to make the victims or other persons unable to take precaution while committing the offences.
- Using cruel tricks means that the offenders use wicked or brutal tricks, etc. while committing the offences.
- Using tricks or means capable of causing harm to many persons means that the offenders use tricks or means to jeopardize not only a person but also many others.
6.2.2.13. Inciting juveniles to commit offences (Point n of Item 1 of Article 48 of the Penal Code)
- Inciting juveniles to commit offences means inciting, arousing, enticing or urging a person of less than 18 years of age to commit offences.
6.2.2.14. Committing treacherous and/or violent acts in order to shirk or conceal offences (Point o of Item 1 of Article 48 of the Penal Code).
- Treacherous and/or violent acts mean unpredictably dangerous acts or ferociousm, devastating or murderous acts in order to run away or hide the offences.
6.2.2.15. Note that: Facts used to sentence or determine penalty bracket shall not be considered as facts of aggravation.
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