Sentence for drunk kayaker unchanged after girl drowns

A woman's whose "gravely reckless and irresponsible" decision to go kayaking while drunk led to a girl's death will still be eligible to walk free from jail next year.

Tamarah Eaton finished a bottle of vodka hours before taking four-year-old Vogue Elers and her dog out in a one-man kayak to go fishing in the NSW Hunter region.

When the kayak capsized at Port Stephens in June 2021 and Vogue and the dog drowned, Eaton had an estimated blood alcohol level of 0.297, almost six times the legal limit.

In December last year, she was sentenced by Judge Peter McGrath to a maximum of 30 months behind bars. Her non-parole period of 18 months expires on June 8, 2024.

An appeal by crown prosecutors of what they claimed was an "inadequate" sentence was dismissed on Wednesday.

Three judges of the NSW Court of Criminal Appeal tossed the Crown's challenge, despite finding that Judge McGrath had erroneously sentenced Eaton, who was 36 years old at the time.

The judge incorrectly used Eaton's deprived background and mental health issues to lower the criminality of her actions.

"While I accept, as the sentencing judge accepted, that this had a substantial and profound impact on her moral culpability, I am unable to accept that it impacted on the objective criminality of her conduct and its consequences," wrote Justice Peter Hamill, supported by the other two judges.

The appeals court did not alter Eaton's original sentence, finding it was within the normal range for this type of offence.

Justice Hamill acknowledged this outcome would not be satisfactory to the girl's family.

"From the point of view of the child's family and friends, the sentence must be thought to be inadequate," he wrote.

"However ... the sentence imposed by Judge McGrath was comfortably within the wide discretion entrusted to the sentencing Judge. It is not plainly wrong, unreasonable or unjust."

He noted the tragedy of the drowning and the dignity of family members who had turned up for a quiet vigil in the courtroom.

"It is an intensely sad case," he wrote.

Vogue's mother Brooke expressed "shock and disbelief" at the appeal court's decision to leave Eaton's "grossly short" sentence unchanged.

"This is beyond unbelievable and disappointing to say the very least," Mrs Elers said in a statement.

"We are the ones who will continue to suffer while (Eaton) enjoys an 18-month long holiday and will be out this time next year."

She said it was not justice, and had handed her, her husband and their four other children a life sentence.

The family would continue fighting to toughen the law with the aim of preventing something like this happening again.

Eaton had been abusing alcohol since 2019 after the death of a friend and reached a point where she was consuming a 750ml bottle of vodka each day.

On the morning of the incident, she finished a green Tupperware bottle of vodka before being invited to the fishing trip with friends.

After the accident, she made no attempt to resuscitate the girl, and was found to be slurring and incoherent by police who noted a strong smell of alcohol.

Her background was dysfunctional, the court noted, including neglect, domestic violence and alcoholism in the family home and later physical and emotional abuse during her first marriage.

In an interview with a psychiatrist, she expressed remorse for what had happened, saying she was "devastated about the death of the child".

In a letter filed with the court, she said she was "truly and unreservedly sorry" and took full responsibility for what had happened.

Lifeline 13 11 14

beyondblue 1300 22 4636