Can I get a suspended sentence if I express cooperative attitude in Vietnam? Can possessing 5 kg of firecrackers receive a suspended sentence in Vietnam?

Can I get a suspended sentence if I express cooperative attitude in Vietnam?

In 2017, he was arrested for gambling and sentenced to 8 months of probation and 16 months of probation. After serving the punishment and trial, the criminal record has not been cleared. In August 2019, I was arrested for gambling via the internet with the amount of 72 million. The file has been transferred to the prosecutor's office. I have honestly declared. So is there any chance for me to get suspended sentence?

Reply:

Pursuant to Section 3, Part I of Official Letter 212/TANDTC-PC 2019 stipulates:

The episode "The offender expresses cooperative attitude or contrition" is understood as the case where the offender sincerely confesses his crime, repents of what he has caused.

According to this Article, the circumstance "The offender expresses cooperative attitude or contrition" is an mitigating circumstance of penal liability at Point s Clause 1 Article 51 of the Penal Code 2015.

A suspended sentence is a measure of conditional imprisonment.

According to the provisions of Article 65 of the 2015 Penal Code and Article 2 of Resolution 02/2018/NQ-HDTP, the conditions for enjoying a suspended sentence are:

1. Where a person is sentenced to imprisonment of up to 03 years, in consideration of the offender's records and mitigating factors, the Court might give a suspended sentence with a probation period of 1 - 5 years and request the convict to fulfill certain obligations during this period in accordance with the Law on criminal sentence execution if imprisonment is deem unnecessary.

Thus, in order to enjoy a suspended sentence in Vietnam, the offender must meet the following conditions:

- Being sentenced to imprisonment for not more than three years, regardless of the crime.

- Having a good character, it is proved that in addition to this crime, they always strictly abide by the policies and laws, and fully fulfill the obligations of citizens; no criminal record, criminal record; have a stable workplace or have a clear and specific permanent place of residence.

- There are two or more extenuating circumstances and no aggravating circumstances.

Article 321. Illegal gambling

1. Any person who illegally gambles in any shape or form with the stakes (in cash or kind) assessed at from VND 5,000,000 to under VND 50,000,000 or under VND 5,000,000 despite the fact that he/she has incurred an administrative penalty or has an unspent conviction for the same offence or any of the offences specified in Article 322 hereof shall face a penalty of up to 03 year's community sentence or 06 - 36 months' imprisonment.

2. This offence committed in any of the following circumstances carries a penalty of 03 - 07 years' imprisonment:

a) The offence is committed in a professional manner;

b) The stake is assessed at VND ≥ 50,000,000;

c) The offence is committed using the Internet, a computer network, telecommunications network or electronic device;

d) Dangerous recidivism.

3. The offender might also be liable to a fine of from VND 10,000,000 to VND 50,000,000.

According to the information you provide in Vietnam, if you gamble online and the gambling amount is 70 million, you will be sentenced to between 3 years and 07 years in prison.

Thus, compared with the conditions to enjoy the suspended sentence in Vietnam, you are not eligible to enjoy the suspended sentence, because:

Firstly, your gambling behavior is punishable by imprisonment for more than 3 years.

- Secondly, you have a criminal record for gambling.

- Thirdly, you have only 1 mitigating circumstance of criminal liability.

Here is the support content.

Can possessing 5 kg of firecrackers receive a suspended sentence in Vietnam?

I was arrested by the police for possessing 5kg of firecrackers. The police said that I violated Clause 1, Article 305. So can I get a suspended sentence for this crime?

Reply:

According to Clause 1, Article 305 of the 2015 Penal Code, it stipulates: Any person who illegally manufactures, possesses, transports, uses, deals in or appropriates explosive materials shall face a penalty of 01 - 05 years' imprisonment.

On the other hand, in Clause 1, Article 65 of the 2015 Penal Code stipulates: Where a person is sentenced to imprisonment of up to 03 years, in consideration of the offender's records and mitigating factors, the Court might give a suspended sentence with a probation period of 1 - 5 years and request the convict to fulfill certain obligations during this period in accordance with the Law on criminal sentence execution if imprisonment is deem unnecessary.

Thus, when you are sentenced by the Court to a sentence of no more than 3 years, you can enjoy a suspended sentence when meeting other conditions in Vietnam.

If my friend takes advantage of floods and storms to steal property, can he receive a suspended sentence in Vietnam? 

Taking advantage of the recent flood and storm situation when many people moved to a shelter from the storm, my friend stole only 40 million dong, can the trial be suspended? He has no criminal record so far.

Reply:

According to Article 2 of Resolution 02/2018/NQ-HDTP, a person sentenced to prison may be considered for a suspended sentence when fully meeting the following conditions:

- Imprisonment for not more than 3 years.

- Have a good character.

- There are 02 or more extenuating circumstances for penal liability, including at least 01 extenuating circumstance for penal liability specified in Clause 1, Article 51 of the Penal Code and no aggravating circumstance specified in Clause 1, Article 52 of the Penal Code.

In case there are aggravating circumstances for penal liability, the number of extenuating circumstances of penal liability must be greater than the number of aggravating circumstances of penal liability by 02 or more, including at least 01 extenuating circumstance specified in Clause 1, Article 51 of the Penal Code.

- Having a clear place of residence or a stable workplace for supervision and education by a competent agency or organization.

- Considering that there is no need to force the execution of prison sentences if the offenders are capable of self-improvement and their suspension does not pose a danger to society; not adversely affect security, social order and safety.

However, Clause 34, Article 1 of the Law amending the Penal Code 2017 (amended Article 173 of the Penal Code 2015) provides for the crime of property theft as follows:

3. This offence committed in any of the following circumstances carries a penalty of 07 - 15 years' imprisonment:

a) The property stolen is assessed at from VND 200,000,000 to under VND 500,000,000;

b) The offender takes advantage of a natural disaster or epidemic to commit the offence.

According to Clause 1, Article 3 of the Law on Natural Disaster Prevention and Control 2013, storms and floods are defined as natural disasters.

Therefore, if your friend takes advantage of the storm situation and steals 40 million VND, he can be sentenced to prison from 07 to 15 years. In this case, your friend will not be eligible for a suspended sentence in Vietnam.

Best regards!