Cases ofthe suspended sentence

I have been operating a small hostel in commune X, district Y. On November 11, 2016, a guest came to my room and asked me for some girls. I agreed with him and called 1 girl with the fee for 500,000 VND. On that day, the police caught red-handed, and I was also detained to investigate "containing prostitution". Because I considered it a normal situation, I did not aware that it was illegal. The Procuracy prosecuted me on charges of "Containing prostitution" in Clause 1, Article 327 of the Criminal Code. The penalty frame for this crime is from 1 year to 5 years. That is the first time I have committed a crime and I have no criminal record. I would like to know if I can get a suspended sentence?

FDVN’s opinion:

Sincerely thank you for your concerning our legal consulting service. We are glad to give you our advice on your question. 

According to Clause 1, Article 65 of the Criminal Code 2015 (amended and supplemented in 2017), “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 probation 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 deemed unnecessary”.

According to Article 2 of the Resolution No. 02/2018/NQ-HDTP dated on 15/05/2018 on guiding the application of Article 65 of the Criminal Code on suspended sentence: 

Persons sentenced to imprisonment may be considered for a suspended sentence when meeting all the following conditions:

1. Being sentenced to imprisonment for not more than 03 years.

2. Have a good identity.

A person is considered to have a good personal identity if, apart from this crime, the offender always complies with policies and laws and fulfills the obligations of citizens at his / her place of residence or workplace.

For persons who have been convicted but are considered as having no criminal records, who are convicted but have had their criminal records wiped out, or who have been administratively sanctioned or disciplined for which the time is considered is not yet sanctioned for administrative violations, has not been disciplined up to 06 months since the date of this offense, if deeming the nature and severity of the newly-committed crimes in less serious cases or offenders who are accomplices who play a minor role in the case and satisfy all other conditions may also be given suspended sentences.

3. There are two or more extenuating circumstances of criminal liability, including at least one extenuating circumstance of penal liability prescribed in Clause 1, Article 51 of the Criminal Code and without aggravating circumstances. criminal liability prescribed in Clause 1, Article 52 of the Criminal Code.

Where there are aggravating circumstances for criminal liability, the number of extenuating circumstances of criminal liability must be greater than the number of aggravating circumstances for criminal liability of 2 or more circumstances, including at least 1 extenuating circumstance. Criminal liability defined in Clause 1, Article 51 of the Penal Code.

4. Having a clear residence place or stable working place so that the competent agencies and organizations supervise and educate.

A place of residence is obviously a temporary place of residence or a place of residence with a specific address in accordance with the Law on Residence where the person on whom the sentence is suspended resides and resides permanently after receiving the suspended sentence.

A stable workplace is a place where the offender works for a term of 1 year or more under a labor contract or under a decision of a competent agency or organization.

5. Seeing that it is not necessary to serve an imprisonment penalty if the offender is capable of self-improvement and giving him a suspended sentence does not pose a danger to society; Do not adversely affect security, social order, and safety.

It is necessary to clarify the mitigating factors stipulated in Article 51 of the Criminal Code 2015 (amendment and supplement 2017) such as:

“1. The following circumstances are considered mitigating factors:

a) The offender has prevented or reduced the harm caused by the crime;

b) The offender voluntarily makes rectification, pays damages or relieves the consequences;

c) The crime is considered an unjustified force in self-defense;

d) The crime is considered an unjustified force in urgent circumstance;

dd) The crime is considered an unjustified force in capturing a criminal;

e) The crime is committed under provocation caused by the victim's illegal acts;

g) The crime is committed because of extreme hardship that is not on the offender's account;

h) The crime has not inflicted damage or the damage inflicted is not significant;

i) The offender commits a less serious crime and does not have a prior criminal record;

k) The crime is committed because the offender threatened or coerced by others;

l) The offender commits the crime while because of lack of awareness that is not on his/her account;

m) The crime is committed due to obsolescence;

n) The offender is a pregnant woman;

o) The offender is 70 years of age or older;

p) The offender has a serious physical disability or extremely serious physical disability;

g) The offender has a disease that limits his/her awareness or control of his/her acts;

r) The offender turns himself/herself in;

s) The offender expresses a cooperative attitude and contrition;

t) The offender arduously assisting the agencies concerned in the discovery of crimes or in the process of case resolution;

u) The offender has made reparation in an effort to atone for the crime;

v) The offender is an excellent worker, soldier or student;

x) The offender is a war veteran or a parent, spouse or child of a war martyr.

2. When issuing a decision on sentences, the Court might consider the offenders turning himself/herself in or other circumstances as mitigating factors and specify the reasons in the judgment.

3. If a circumstance defined as a mitigating factor this document is the basis for determination of a crime or sentence bracket, it shall not be considered a mitigating factor in the decision on sentences”.

Besides, you must not fall into the cases that do not allow a suspended sentence as prescribed in Article 3 of Resolution 02/2018 / NQ-HDTP:

1. Offenders are those who conspire, lead, command, stubbornly oppose, hooligans, use cunning tricks of a professional nature, take advantage of their positions and powers to make personal profits, intentionally cause back The fruit is especially serious.

2. The person who commits the crime has run away and has been wanted by the procedure-conducting agencies.

3. Persons who are sentenced to hang new crimes during the probation period; persons currently on probation are tried for another crime committed before the probation.

4. Offenders are tried at the same time for many crimes, except where the offenders are persons under 18 years of age.

5. Committing the crime more than once, except where an offender is a person under 18 years of age.

6. Offenders are in the case of recidivism or dangerous recidivism.

Therefore, to determine that you can get a suspended sentence or not, you should refer to the law provisions mentioned above.

Above are the advice of FDVN Limited Law Firm base on studying law provisions and theories. We hope that our opinions would be useful.

Legal expert: Nguyen Thi Hai Nhi

FDVN Law Firm

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