How to determine the circumstance of "committing an offense twice or more"

In criminal trials, correctly identifying aggravating, mitigating, and penalty-determining circumstances is of great significance. The incorrect application of even a single circumstance can unlawfully subject the defendant to a harsher sentence.

Document No. 4539/RKN-TPT1 issued by the Appellate Court of the Supreme People's Court in Hanoi on May 4, 2026, regarding the drawing of experience in applying Point g, Clause 1, Article 52 of the Penal Code is a noteworthy guideline. The core content of this document can be understood very briefly: "A circumstance that has been used to determine the penalty bracket shall not be reused as an aggravating circumstance for criminal liability."

In other words, the same disadvantageous circumstance must not be "counted twice" against the defendant.

1. The issue raised

Point g, Clause 1, Article 52 of the Penal Code stipulates that "committing an offense twice or more" is an aggravating circumstance for criminal liability. However, in many specific articles of the Penal Code, the circumstance of "committing an offense twice or more" is also concurrently prescribed as a penalty-determining circumstance.

This is exactly where confusion easily arises.

For example, a defendant commits a criminal act twice. The legal provision for that offense states that if "committing an offense twice or more," the defendant will be tried under a heavier penalty bracket. In this case, the Court applies the heavier penalty bracket because the defendant committed the crime multiple times.

But after applying the heavier bracket, if the Court continues to record the defendant as having the aggravating circumstance of "committing an offense twice or more" under Point g, Clause 1, Article 52 of the Penal Code, an error occurs.

The error lies in the fact that the same circumstance has been used twice to the defendant's detriment.

2. Distinguishing between penalty-determining circumstances and aggravating circumstances

To correctly understand this guideline, two concepts must be distinguished.

A penalty-determining circumstance is a circumstance that changes the penalty bracket. That is, transitioning from a lighter bracket to a heavier bracket within the same article of law.

Example:

Clause 1 of an article prescribes a penalty ranging from 01 year to 05 years in prison.

Clause 2 prescribes that if "committing an offense twice or more," the penalty ranges from 05 years to 10 years in prison.

In this case, "committing an offense twice or more" is a penalty-determining circumstance. It serves to elevate the defendant from Clause 1 to Clause 2.

An aggravating circumstance for criminal liability, on the other hand, is a circumstance considered when sentencing within an already established penalty bracket. It does not change the bracket, but it may cause the Court to select a more severe penalty level within that same bracket.

Example:

A defendant is tried within the bracket of 02 years to 07 years in prison. If there are aggravating circumstances, the Court may consider imposing a sentence closer to the upper limit of the bracket.

Thus, penalty-determining circumstances and aggravating circumstances are two different mechanisms. But if the same legal event has been used as a penalty-determining circumstance, it cannot be reused as an aggravating circumstance.

3. The principle to be drawn

The principle can be expressed as follows:

If "committing an offense twice or more" is already the basis for applying a heavier penalty bracket in a specific legal provision, then the aggravating circumstance of "committing an offense twice or more" under Point g, Clause 1, Article 52 of the Penal Code shall not be further applied.

This is a principle that ensures fairness in sentencing.

Because criminal law allows the State to strictly handle multiple-time offenders. But that strictness must remain within legal limits. A single circumstance should only create one disadvantageous legal consequence; its legal consequences cannot be doubled if the law does not permit it.

4. An easy-to-understand example

Suppose A commits theft of property twice.

The first time, A steals property worth 5 million VND.

The second time, A steals property worth 8 million VND.

If the article on the crime of theft of property stipulates "committing an offense twice or more" as a penalty-determining circumstance in a heavier clause, the Court can apply that clause to try A.

But when deciding the penalty, the Court must not further state that A is also subject to the aggravating circumstance of "committing an offense twice or more" under Point g, Clause 1, Article 52 of the Penal Code.

The correct approach is:

A is tried under a heavier penalty bracket for committing the offense twice or more. Then, when determining the sentence, the Court only considers other aggravating and mitigating circumstances, if any. It is forbidden to add the very circumstance of "committing an offense twice or more" a second time.

5. The example in the document: the crime of embezzlement of property

The document provides an example of a defendant embezzling property 03 times:

1st time: 500,000,000 VND.

2nd time: 300,000,000 VND.

3rd time: 200,000,000 VND.

Total: 1,000,000,000 VND.

In this case, it can be seen that the defendant shows signs of both "committing an offense twice or more" and "appropriating property valued at 1,000,000,000 VND or more".

According to the guideline, if the circumstance of appropriating 1 billion VND or more falls under a higher penalty bracket, the Court applies the highest bracket corresponding to the value of the appropriated property.

At that point, the Court does not further apply the aggravating circumstance of "committing an offense twice or more" under Point g, Clause 1, Article 52 of the Penal Code.

The important point here is: even though the defendant committed the act multiple times, the element of "multiple times" is already encompassed in the assessment of the crime structure and bracket determination. This element must not be further used as a basis for aggravation.

6. In which cases is Point g, Clause 1, Article 52 still applied?

The circumstance of "committing an offense twice or more" is not always excluded.

This circumstance is still applied if the legal provision on the specific offense does not prescribe "committing an offense twice or more" as a penalty-determining circumstance.

Example:

B commits an offense for which the corresponding article does not have an aggravated bracket for "committing an offense twice or more".

B commits the criminal act 03 times, each time independently, and each time satisfying all elements constituting the crime.

In this case, because "committing an offense twice or more" has not been used to determine the bracket, the Court can apply Point g, Clause 1, Article 52 of the Penal Code as an aggravating circumstance for criminal liability.

Thus, the key point is not whether the defendant committed the offense multiple times. The key point is whether that circumstance has been used to determine the penalty bracket.

If it has been used, then stop.

If it has not been used, it can be considered as an aggravating circumstance.

7. Significance for trial practice

This guideline has immense practical significance.

First, it helps Courts maintain uniformity in the application of the law. The same circumstance cannot be used once in one place and twice in another.

Second, it helps protect the legitimate rights and interests of the defendant. In criminal proceedings, a defendant may be convicted and penalized, but the conviction and sentencing must be lawful, accurately grounded, and within proper limits.

Third, it serves as an important basis for lawyers, defense counsels, or convicted persons to review judgments. If a judgment both applies a penalty bracket due to "committing an offense twice or more" and simultaneously applies Point g, Clause 1, Article 52 of the Penal Code, it is necessary to examine the possibility that the judgment has applied a disadvantage twice for the very same circumstance.

8. Suggested arguments when used in appeals, petitions, or recommendations for protest

Arguments can be made in the following direction:

In this case, the circumstance of "committing an offense twice or more" was already used as the basis for determining the penalty bracket against the defendant. Therefore, continuing to use this exact circumstance as an aggravating circumstance for criminal liability under Point g, Clause 1, Article 52 of the Penal Code is inconsistent with the principle of not counting a disadvantageous circumstance twice against the accused.

Such simultaneous application may cause the penalty to be more severe than the level that should have been applied, directly affecting the legitimate rights and interests of the defendant.

Therefore, it is necessary to consider removing the aggravating circumstance of "committing an offense twice or more" if this circumstance has already been used as a basis for determining the penalty bracket.

9. Conclusion

The spirit of this experience-drawing document is crystal clear: criminal law must be strict, but strictness does not mean cumulatively adding disadvantages in a duplicated manner.

"Committing an offense twice or more" can be a penalty-determining circumstance. It can also be an aggravating circumstance. But within the same case, and based on the same grounds, it cannot be used both to determine the bracket and to aggravate the penalty.

This is an essential guideline, reflecting the requirement to ensure fairness in criminal trials: the defendant must bear responsibility for their actions, but strictly within the scope permitted by law.