Hakimzadeh, R. v

MR JUSTICE BLAKE: On 21st May 2008, in the Crown Court at Wood Green, this applicant pleaded guilty to 14 counts of theft. Following a further hearing in the autumn of 2008 he was sentenced for those matters on 16th January 2009 to a term of two years' imprisonment on each count concurrent. He was ordered to pay £7,500 towards prosecution costs and he had asked for 20 further offences of theft to be taken into consideration.

This is an application for leave to appeal against sentence that has been referred to the full court by the Registrar. For reasons that we are about to give, the application for leave to appeal is granted, and the applicant will then proceed as the appellant in this matter.

The offences relate to theft and damage to books that the appellant removed from learned libraries in this country. Counts 1 to 9 and 15 relate to books taken from the British Library and counts 11 to 14 relate to the Bodleian Library. The common theme of these books was that they dealt with cultural contacts between Europe and what was then Persia from the 15th, 16th centuries and thereafter. This was a topic in which the appellant had a particular scholarly interest. His origins are from Iran; he has been resident in the United Kingdom for over 30 years, although he has US nationality and he has an international reputation as a scholar and expert upon the topic of cultural relations between Iran and the western world. He is a person of substance and has a distinguished collection of books on that topic. It has been said in the course of the proceedings that he regarded his library as the fourth most significant in the world in terms of extensive collection of materials related to this topic after the collections of the British Library, Bodleian Library and a notable collection in the United States of America.

These offences occurred over a substantial period of time, though it is not possible to ascertain when the offending first began. On a number of occasions the thefts were of maps or other illustrations that were removed from books by a scalpel or some other sharp cutting instrument, rendering the book that was left deficient in terms of a plate. 12 counts related to theft of pages from books and two counts of theft related to the books themselves, and this was also reflected in matters to be taken into consideration.

The offences came to light in the summer of 2006 when another reader of these books noticed that there were missing pages and there had been defacing of some of the books in question. The British Library then made enquiries of all its reader who they were able to indicate had had access to these books, including this appellant. There were other books which were not the subject of counts that were found to be damaged that the appellant had access to, but the matter proceeds entirely upon the basis of the criminality that he admits in the 14 specimen counts and the matters that he has asked the court to take into consideration.

It would appear that his removal of either the books or pages cut from the books had come to an end by about 2004, and that was the basis upon which the matter proceeded before the trial judge. As indicated, it is not possible to identify when these removals first took place, he had access to these libraries on a readers ticket for many years and it must have taken many visits to the libraries over a course of at least a great many months, if not years, to remove the quantity of materials that he had removed that were the subject of the counts in question.

In due course the police obtained a warrant to search the appellant's personal library and found either missing books or pages that had been cut from the books of the British Library and the Bodleian Library. The appellant gave a false explanation when first interviewed as to where he had got these books from, but by his plea of guilty he accepted full responsibility for his criminality.

The appellant is now aged 61. He has an international reputation as a scholar. He doubtless partly relied on that reputation to obtain the readers ticket that he was afforded to the British Library. We are told that there are not particularly onerous checks or other requirements before such a ticket can be made available, the position is unclear as to the Bodleian Library, but we have no doubt that he was able to visit these books in the manner that he did partly because of his reputation and partly because he was trusted to treat them in the way that scholars should treat an important, cultural and historical resource that belongs to significant cultural institutions charged with protecting the cultural heritage of the nation.

It is right to say that there was extremely powerful mitigation in this case relating to this appellant, his family circumstances, his philanthropic and charitable works. Amongst the features in the mitigation are the following. It is put forward on his behalf that there was no commercial motive in acquiring these books with a view to their onward sale. It seems that only one book had been given to an auctioneer, a book called "The Muse of Newmarket", and that, it has been suggested that such a sale was a mistake. The book was sold for some £2,000. All the books have been recovered and so have the pages, although undoubtedly even if the pages can be restored to the missing books there will be a significant diminution in value by reason of the fact that they had been cut and damaged. But the apparent motive in acquiring these books was not to sell for cash to the open market but to improve the scale and range of the appellant's personal library. There was a medical report before the court suggesting that there may have been some form of acquisitive personality disorder that may have prompted this offending for that purpose.

Secondly, it was plain from an enormous quantity of positive good character references from scholars in this country and in the United States that the appellant was held in high regard, both as a scholar and a philanthropist who has founded charities and was extremely generous with his time and with the books that formed his library, which he indeed had offered to another university library on the occasion of his death. So this was not a case of someone who was stealing in order to improve his library for purely selfish reasons and then preventing scholars from accessing those books in the future.

It is said on his behalf that although he was aware of the enquiries from 2006 when the British Library was aware that there had been damage to these books reported, he took no steps to remove the incriminating pages from his library. He was arrested in 2007 and he was brought before the court at Wood Green in May 2008. The matter had been hanging over him for some time and he had not dissipated the materials before his arrest.

The consequence of his plea of guilty, he being a person of no previous convictions and very positive good character, is a very considerable loss of reputation and humiliation at the age of 61, given the high regard in which he had previously been held. He is a person of substance and had agreed to compensation, but, given the difficulties in the precise valuation of the damage that the losers had to incur by this appellant's crimes, it was accepted that the matter should be dealt with in the civil court rather than in the criminal court. That was one of a number of factors that placed the judge in some difficulty in approaching the question of sentence. Another was that there was no reported case of this court setting guidelines for this kind of offending.

In our judgment, it is apparent that this kind of offending, where cultural property is concerned, is very different from offending where the seriousness can only be gained by the value in the open market of items which can readily be replaced and purchased, whether they may be goods in a supermarket or ordinary books which are still in print and available and it is simply the replacement value of items lost. Cultural property cannot be valued in the same way as cash or readily replicable items, and the gravamen is the damage to rare items of historical, intellectual and cultural importance, and that is why, in our judgment, a significant element of deterrence is always necessary to deter others from such crimes which diminish the intellectual and cultural heritage of the nation.

A number of first instance cases were drawn to the learned judge's attention. It is right to say that none of those cases had the mitigating factors that have been briefly summarised, and most of them had positive aggravating factors of a significant breach of trust by a librarian or other custodian and sale of vast quantities of similar material for cash for one purpose or another. That was not the problem that confronted this judge. However, by the time of sentence, in January 2009, the Sentencing Guidelines Council had published definitive guidance applicable to sentences imposed from 5th January 2009 onwards for theft and burglary in a building other than a dwelling. Those of course are guidelines, they do not specifically address the problems of unique cultural property or important books of this sort, but, in our judgment, the recommended guidelines for theft in breach of trust can provide some relevant basis of comparison to which regard can be had.

Mr Boyce QC, who appears for this appellant, sought to indicate that there was really no evidence of breach of trust at all since it did not require very much to acquire a readers ticket to the British library and therefore it was appropriate to have regard to the guidelines on theft from a building other than a dwelling, and it was suggested that a shop or supermarket would be an appropriate comparator. We reject that submission completely for the reasons already given, it failed to place any value on the cultural property and the expectations of readers of learned reading books in which the libraries are entitled to place trust by reason of the mere fact of holding a ticket, but certainly of reputation, in addition the fact of a ticket holder. So we consider that there is an element of breach of trust which brings the guidelines relating to theft in breach of trust into play.

Mr Boyce next submitted that, if there was an element of breach of trust, this was not the most severe case of breach of a high degree of trust, which should be reserved for people who had responsibility for conserving collections with specialised access, such as employees of libraries, or those with particularly specialised unsupervised and privileged access to private documents. We recognise there is force in that submission.

On behalf of the Crown, Mr Amor submitted to us that the requisite guideline is to be found in the second level of severity, which is described thus "theft of £2,000 but less than £125,000, or theft of £2,000 or more but less than £20,000 in breach of a high degree of trust". We accept that this is not a case of high degree of trust, but a breach of trust, and for reasons relating to the range of potential ways of valuing the books damaged or stolen, we consider that they were well over £20,000 but probably under £125,000. For the purpose of this judgment we can indicate that there was at least a measure of agreement that the replacement value of these books would have been in the region of £100,000 to £145,000. The appellant submitted that if they had been made good by restoration that would cost up to about £15,000, plus there would be some diminution in the value. In our judgment, that would certainly be well over £20,000, but again it is the destruction of cultural property, which may not have a precise monetary value, that is the gravamen of this offence.

For offending of such a range the guidelines suggest a starting point of two years' custody and a sentencing range of 12 months to three years' custody in a contested case by a person of good character.

We accept that this is a case in which there is exceptional mitigation of a sort that is often missing from this class of case and may well provide a very unique outcome in this matter. We accept also that the appellant was entitled, as the judge said, to full credit for his plea of guilty. In those circumstances, two years' custody, is a perfectly appropriate starting point for this kind of offending, taken as a whole over a period of time, which is recognised to be an aggravating factor. There then had to be a credit for the exceptional mitigation available to this particular appellant and credit for a plea of guilty. Taking those two factors together, we conclude that the appropriate sentence overall should have been one of 12 months' imprisonment, and that is the sentence that we propose to substitute.

A point was further made following sentence that this appellant, by reason of the sentence imposed upon him, is at risk of being subject to the automatic deportation provisions of the UK Borders Act 2007, which came into force in August 2008, because under section 32 of that Act he has been sentenced to a single term of imprisonment of 12 months for at least one offence. Mr Boyce QC submits that that was never in contemplation of the judge, and indeed no liability to deportation had been served, so the matter was never considered at all. He points out that if the sentence of 12 months which we consider is the appropriate sentence is structured in a particular way between the two losers, the British Library and the Bodleian Library, then, whatever the Secretary of State's powers are for discretionary deportation, this appellant would not fall within the automatic deportation provisions.

Having regard to the age of these offences, the very substantial period of residence here and the fact that deportation was clearly not in the judge's mind at all, we consider in this case there is some merit in that submission. We therefore propose to set aside the sentence of two years on all 14 counts, to substitute for it for counts 1 to 9 and count 15, where the British Library is the loser, a sentence of 9 months' imprisonment, each of those counts will concurrent with each other; and for counts 11, 12 and 13, where the loser will be the Bodleian Library, to impose three months' imprisonment concurrent with each other but consecutive to the nine months for the British Library, making a total term of 12 months' imprisonment. To this extent this appeal is allowed.