R v Romain Bornes [2026] EWCA Crim 808

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.Neutral Citation Number: [2026] EWCA Crim 808Case No 202600773 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT OXFORD
(HIS HONOUR JUDGE HASSAN KHAN) (43SP0270125)
Venue Royal Courts of JusticeDate 25 th June 2026
Strand
London
WC2A 2LL
Before
LADY JUSTICE ANDREWSMR JUSTICE JAYMRS JUSTICE THORNTON
Between
REXCrownv
Between
ROMAIN BORNES__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR L THOMPSON appeared for AppellantMR M KNIGHT appeared for Crown_________APPROVED JUDGMENT

Introduction

[1]The appellant appeals with leave against a sentence of 28 months imposed for six offences of distributing, making and possession of indecent images of children.[2]Having pleaded guilty at the magistrates' court on 15 January 2026 the appellant was committed to the Crown Court for sentence pursuant to section 14 of the Sentencing Act 2020.[3]On 12 February 2026 the appellant was sentenced. For the lead offence of distributing indecent images of a child (Category A) contrary to section 1(1) (b) and (6) of the Protection of Children Act 1978) he was sentenced to 28 months' imprisonment. For the other offences, concurrent sentences were imposed. For possession of a prohibited image of a child contrary to section 62(1) and 66(2) of the Coroners and Justice Act 2009, the sentence was 2 months' imprisonment (concurrent). The remaining offences were charged and sentenced (concurrently) pursuant to section 1(1) (a) and (6) of the Protection of Children Act 1978. For the offence of making indecent photographs of a child (Category A) - 16 months' imprisonment; for distributing indecent images of a child (Category B) - 10 months' imprisonment concurrent. For making indecent photographs of a child (Category B) 8 months' imprisonment; and for making indecent photographs of a child (Category C) 4 months' imprisonment. A Sexual Harm Prevention Order was imposed for a period of 10 years, and a deprivation order was made in respect of the appellant's mobile phone. Background facts[4]The appellant is a French national who was studying in the UK at the material times. Police officers responding to intelligence attended on the appellant and seized his mobile phone. On analysis the phone was found to contain a number of indecent images of children as follows:• 1,058 Category A images, which are images involving penetrative sexual activity, of which 176 were moving images;• 1,396 Category B images, which are images involving non-penetrative sexual activity, of which 523 were moving images; and• 1,565 Category C images, comprising other indecent images which do not fall within Categories A or B, of which 7 were moving images.[5]The appellant was found to have connected with other individuals on online platforms including a conversation in which the appellant said, "What age do you like?", to which the response was "8 years", whereupon the appellant replied, "The same". Within those chats he distributed Category A moving images, two examples of which are a video of 1 minute 6 seconds depicting a 4 to 6-year-old child, the oral rape of a child and ejaculate on the child's chest. A further moving video of 5 minutes and 53 seconds depicted a 6 to 8-year-old female child being orally raped; ejaculate was shown to be coming out of her mouth. The appellant distributed 22 Category A images and 3 Category B images.[6]In his sentencing remarks

the judge summarised the totality of the offending, saying:

"Your offending involved the deliberate sourcing, viewing and then distribution of indecent images of children over at least around a year, alongside engagement in sexualised conversations. And: "
This is a case where there aren't just indecent images of children, but there has been distribution."[7]Having set out the starting points and ranges from the relevant guideline, the judge identified the aggravating features of the offending as the age and vulnerability of some of the children depicted; the period over which the images were possessed, distributed or produced, noting that the distribution was close to a year; the high volume of images that were in the appellant's possession (just under 4,000 images); 22 moving images were distributed; there were a large number of victims.[8]Turning to the mitigation, the judge identified the following: the appellant is a young man of good character; the offending took place when the appellant was between 20 and 21 years old; he had expressed genuine remorse and took full responsibility for his actions; he had been abused himself when he was 12; there was developing insight, with the appellant having engaged with the Lucy Faithful Foundation; the appellant has diagnoses of ADHD and anxiety, and had been diagnosed as neurodiverse in 2023; and the appellant had gone to some lengths to address his offending behaviour, having attended more than 87 sessions of psychotherapy.[9]The judge took account of the character references and that the appellant had been assessed as posing a medium risk of reoffending. He also took into account the impact of any custodial sentence on the appellant. The judge said he was "acutely aware of all such matters", that he had taken account of the mitigation and aggravating factors, with particular regard to the attempts made by the appellant to address his behaviour. Nonetheless, this remained a very serious case, particularly given the distribution of moving images.[10]The judge structured the sentence by taking the Category A distribution offence as the lead offence which he adjusted to reflect the totality of the criminality, including the Category B distribution and the indecent images possession at Categories A, B and C, as well as the possession of prohibited images (he identified two such images). He imposed a custodial sentence of 3½ years before credit, which, when applied, reduced the sentence to 28 months' imprisonment.

Grounds of appeal

[11]The grounds of appeal are as follows.a. Although the case was correctly categorised, consideration of aggravating and mitigating factors should have led the court to reduce the sentence from the starting point in the guideline, before applying credit for guilty pleasb. As a result, the sentence should have been capable of suspension; and consideration of relevant factors would have led to a suspended sentence being imposed.[12]On behalf of the appellant, Mr Thompson submitted before us that the judge was wrong to uplift the lead offence of Category A distribution as all the offences were inexplicably linked. The judge should not have considered the volume of images in the appellant's possession as an aggravating factor for the distribution offence. There were only three relatively unremarkable aggravating factors which applied to the lead offence: age, vulnerability, the relatively lengthy period for which the images were distributed and the presence of moving images. There was for example no discernible pain on the part of the victims or an abuse of trust.[13]In contrast, eight of the nine mitigating factors listed in the relevant Sentencing Council Guidelines were present, and these mitigating factors significantly outweighed the aggravating factors, and should have led to a decrease from the starting point to a sentence that could and should have been suspended. The mitigating factors included no previous convictions, remorse, positive character, age, lack of maturity, mental disorder and learning disability, and, most significantly he submitted, comprehensive steps taken to address the offending behaviour. There was also a background of sexual abuse and the effect of delay in proceedings. Discussion The time span of the offending[14]We begin by addressing a procedural issue which we are grateful to the Court of Appeal office lawyer for identifying. The police charges particularise the period of offending as between "15 June 2003 and 6 July 2023". In relation to the charge of possession of a prohibited image of a child contrary to section 62 of the Coroners and Justice Act 2009, the offending is said to span a period of time prior to the commencement of the Act of Parliament. In relation to all of the charges the offender was under the age of criminal responsibility for much of the date range specified. The Court of Appeal office raised the matter with the parties prior to today's hearing. Neither side wished to make any application in respect of the issue.[15]In his helpful note to the court, Mr Knight acknowledged the position is regrettable but submitted the convictions were not thereby rendered unsafe and no amendment was necessary to the dates of the offending as it had never been the Crown's case that the appellant had been in possession of the images over the entire period specified within the charge. The Crown had opened the case on the basis of the date ranges specified in the forensic report, which identified communications in December 2022, April 2023 and July 2023, and this was clearly the timeframe in which the appellant was engaged in activity relating to the acquisition and viewing of the images. The distribution offences had specific dates attached to them by virtue of the time stamp left within the applications used to send the images - the relevant dates were between 31 July 2022 and 13 May 2023. Accordingly, the Crown opened the case, the defence mitigated and the appellant was sentenced on the basis that the relevant dates of offending across all offences were between 31 July 2022 and 4 July 2023, a period of around a year. Accordingly, during the dates that the criminal conduct took place the appellant was 20 to 21 years of age and the offending took place at a time that the conduct constituted a criminal offence under the relevant legislation in force at the time.[16]Similarly on behalf of the defendant, it is said that the defence do not wish to appeal the convictions or vacate the pleas, nor would the defence have wanted today's hearing to be vacated. The dates in the charges do not make the convictions invalid and it is not necessary for any alteration to be made.[17]We have considered the case of R v Gould [2021] EWCA Crim 447 which addresses the position in relation to failures by the prosecution in charging criminal offences. We have considered in particular the typographical error in the charge in the case of Mr Mugenzi, as to which the Crown Court judge sought to correct by exercising the power of a district judge under section 66 of the Courts Act 2003. At paragraphs 139-144 of the judgment the Court of Appeal concluded the procedure adopted by the judge was unnecessary, stating as follows:
"140. … The charge contained an obvious typographical error which could simply have been ignored by agreement. 141. Blackstone, Criminal Practice 2021 says this:- [D11.3] Since divergence between a count and the evidence as to date is not in itself fatal to conviction, it may be unnecessary for the prosecution to apply for the indictment to be amended on such a divergence becoming apparent … However, as a matter of practice, it may be preferable to eliminate the divergence by an appropriate amendment, thus avoiding confusing the jury. 142. This is an observation about indictments, but there is no reason why the approach should be any different in respect of charges. That being so, it was for the judge to decide the basis of sentence in the ordinary way, and she was not constrained by the obvious typographical error. There was, as we have said, no dispute about the basis of sentence and that step was not required of her."
[18]We agree with the prosecution that the position before us is analogous to that set out in R v Gould in the extract above. The dates of the offending were understood and agreed by all parties as well as the judge, who sentenced on the basis of the common understanding as to the facts. Given the guilty pleas there has been no question of any jury being confused. Accordingly, the committal to the Crown Court for sentence was valid and the sentence was lawfully passed. We proceed therefore to turn to address the substance of the appeal before us.

The merits of the appeal

[19]There is no dispute that the judge was entitled to treat count 3 (distributing indecent images of a child, Category A) as the most serious offending. There is also no dispute as to the categorisation of the offending in this regard under the relevant guideline or the starting point. For distribution of Category A images, the starting point is 3 years' custody, and the category range is 2 to 5 years. The Sentencing Council Guideline on Totality states that the principle of totality requires a judge when sentencing for more than one offence to reflect in the overall sentence all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors relating to the offences and those personal to the offender. The Guideline goes on to state that there is no inflexible rule as to how the sentence should be structured:
"If concurrent, it will often be the case that the notional sentence on any single offence will not adequately reflect the overall offending. Ordinarily some upward adjustment is required and may have the effect of going outside the category range appropriate for a single offence."
[20]In our view the judge was entitled to treat count 3 as the lead offence and to adjust the sentence upwards to reflect the totality of the offending, which included distribution of Category B images, with a starting point of 1 year in custody, as well as possession of Category A, B and C images, and the possession of prohibited images. Possession of Category A images has a starting point of 1 year. We do not accept the defence submission that the appellant's possession of the indecent images is subsumed within the distribution offending in circumstances where the appellant distributed 22 Category A images and 3 Category B images but was in possession of just under 4,000 images in total, of which 176 were Category A moving images.[21]It is not said that the judge failed to identify the relevant aggravating and mitigating features. He sets them out clearly. Like the judge, we accept that there are a number of mitigating features, including good character, remorse and steps taken to address the offending. There are, however, as the judge identified, a number of aggravating features of the offending, including the young age of the victims, the large number of victims and the presence of moving images. In the case of the distribution, the period of offending identified by the judge was 1 year. The volume of images in the appellant's possession (just under 4,000 images) was significant and relevant to the judge's consideration of totality. Having set out the mitigation the judge commented:
"This remains a very serious case, particularly given the distribution of moving images."
We agree.[22]It follows that we do not consider a sentence before credit for plea of 3½ to reflect the totality of the offending as manifestly excessive and accordingly we dismiss the appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk