Shall not applied aggravating circumstances “Committing a crime more than once” if it has already been counted as qualifying circumstance

Committing a crime more than once may constitute both a penalty-framing circumstance and an aggravating circumstance for criminal liability under certain provisions of the Criminal Code. This article analyzes the applicable legal provisions and the latest guidance issued by the Council of Judges of the Supreme People’s Court to clarify the circumstances under which this factor must not be applied as an aggravating circumstance.

In criminal adjudication, the identification and application of aggravating circumstances play a significant role in determining an appropriate sentence. However, there have been cases where the same circumstance simultaneously constitutes a sentencing framework factor of an offence and an aggravating circumstance under Article 52 of the Criminal Code, resulting in inconsistent interpretations and applications in practice.

1. How is the circumstance of “commission of the offence twice or more” regulated under the Criminal Code?

Article 52.1.g of the 2015 Criminal Code provides that “commission of the offence twice or more” constitutes an aggravating circumstance for criminal liability. At the same time, this circumstance is also prescribed as a sentencing framework factor for a number of offences under the Criminal Code.

Clause 2, Article 52 of the 2015 Criminal Code provides:

“Any circumstance that has been prescribed by this Code as a constituent element of an offence or as a sentencing framework factor shall not be treated as an aggravating circumstance.”

This provision reflects the principle that a circumstance already used to determine the offence or the applicable sentencing framework must not be used again as an aggravating circumstance when imposing the sentence.

2. Practical issues in applying the circumstance of “committing a crime more than once”

In practice, difficulties have arisen where an offender simultaneously satisfies multiple sentencing framework factors prescribed in different clauses of the same statutory provision. In such cases, “committing a crime more than once” constitutes a sentencing framework factor under a clause carrying a lower penalty, while the offender also falls within another sentencing framework factor under a clause prescribing a more severe penalty.

Consequently, one view emerged that where the circumstance of “commission of the offence twice or more” is not relied upon in determining the applicable clause of the offence, it may nevertheless be applied as an aggravating circumstance pursuant to Point (g), Clause 1, Article 52 of the 2015 Criminal Code when determining the sentence.

3. The Council of Judges’ guidance on non-application as an aggravating circumstance

To ensure the consistency of law application, the Council of Judges of the Supreme People’s Court issued Resolution No. 04/2025/NQ-HĐTP on 30 June 2025. According to point (a), Clause 2, Article 5 of the Resolution provides: “Where a sentencing framework factor also constitutes an aggravating circumstance for criminal liability under Clause 1, Article 52 of the Criminal Code, but is prescribed in a different sentencing framework of the same offence, the highest applicable sentencing framework shall be applied, and the remaining circumstances shall not be treated as aggravating circumstances for criminal liability.”

Pursuant to the guidance, when the circumstance simultaneously constitutes both sentencing framework factors and aggravating circumstances under Clause 1, Article 52 of the Criminal Code, the court may only rely on such circumstances to determine the applicable sentencing framework. If multiple sentencing framework factors are prescribed under different clauses of the same offence, the clause carrying the highest penalty shall apply, while the remaining sentencing framework factors shall not be applied again as aggravating circumstances.

This principle was further clarified by the Appellate Court of the Supreme People’s Court in Hanoi in Official Letter No. 4557/RKN-TPT1 on 4 May 2026 regarding the application of aggravating circumstances in criminal cases.

The Official Letter provides the following illustration: the defendant committed the act of asset embezzlement on multiple occasions, with the total amount misappropriated reaching VND 1 billion. In this case, the accused simultaneously satisfied the circumstance of “commission of the offence twice or more” under Point (c), Clause 2, Article 353 of the Criminal Code and the circumstance of “misappropriating property valued at VND 1 billion or more” under Point (a), Clause 4, Article 353 of the Criminal Code. Since Clause 4 prescribes the more severe sentencing framework, the accused was prosecuted under Point (a), Clause 4, Article 353. Accordingly, the circumstance of “commission of the offence twice or more” could not be applied again as an aggravating circumstance under Point (g), Clause 1, Article 52 of the Criminal Code.

Conclusion

Based on the foregoing legal guidance, it may be affirmed that where a circumstance has already been prescribed by the Criminal Code as a sentencing framework factor, it must not be relied upon again as an aggravating circumstance for criminal liability. This principle prevents the same circumstance from being counted twice in sentencing, thereby ensuring objectivity, fairness, and consistency in criminal adjudication.

For in-depth legal assistance, please kindly contact:

Consulting – Litigation Lawyer: Pham Anh Hung

• – Email: info@bizlawyer.vn
• – Phone: 086.885.1900

Respectfully./.